Meaning and Definitions of International Law:

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.

 International law is the body of law that governs the relations and conduct of sovereign
states with each other, as well as with international organizations and individuals. It is
a complex and dynamic system of law that covers a wide range of topics, including
trade, human rights, diplomacy, environmental preservation, and war crimes.

 International law is different from domestic law in a number of ways. First, it is

primarily based on the consent of states. States agree to be bound by international law
through treaties, customs, and general principles of law. Second, international law is
enforced primarily through diplomacy and negotiation. There is no central authority to
enforce international law on states. Third, international law is constantly evolving,
reflecting the changing needs of the international community.

 International law is important because it provides a framework for cooperation and

order in the world. It helps to protect the rights of states and individuals, and it promotes
peace and security.

Here are some examples of international law:

 The United Nations Charter, which establishes the United Nations and its goals

 The Geneva Conventions, which regulate the conduct of war

 The Universal Declaration of Human Rights, which guarantees basic human rights to
all people

 The Convention on the Law of the Sea, which establishes rules for the use of the oceans

 The World Trade Organization (WTO) agreements, which regulate international trade.

Various Scholars on International Law

The term International Law was first coined by Jeremy Bentham in 1780. Various definitions
of International Law were given by Oppenheim, Brierly, Torsten Gill, Hackworth, Fenwick,
Schwarzenberger; since, time and again, International Law has been defined by focusing on
different factors, so there can be no single universally acceptable definition to the same. Various
eminent scholars, international jurists, subject experts gave their interpreted definition of
International law. Most popular among them are as follows:

 According to Prof. L. Oppenheim, “Law of Nations or International Law is the name

for the body of customary and conventional rules which are considered legally binding
by the civilized states in their intercourse with each other.”

 As per J.L. Brierly, “The Law of Nations or International Law may be defined as the
body of rules and principles of action, which are binding upon civilized states in their
relations with one another.”
 Gray said, “International law or the Law of Nations is the name of a body of rules which
according to their usual definitions regulate the conduct of states in their intercourse
with each other.”

JJ Starke Definition:

International law has evolved beyond merely governing the interactions between sovereign
states. Modern definitions, such as those proposed by legal scholar J.G. Starke, recognize its
broader scope. Starke defines international law as a body of principles and rules that states feel
obligated to observe in their relations with each other. Importantly, he expands this definition
to include:

 Rules concerning international institutions or organizations: These pertain to the

functioning of entities like the United Nations or the World Health Organization,
governing their interactions with states, other organizations, and individuals.
 Rules relating to individuals and non-state entities: This aspect addresses the rights
and duties of individuals and entities such as multinational corporations, especially
when these concerns are of international interest.

Examples Illustrating Starke's Definition:

 1. International Criminal Court (ICC): Established by the Rome Statute, the ICC
prosecutes individuals for crimes like genocide and war crimes. This reflects
international law's direct application to individuals, holding them accountable for
actions that violate global norms.
2. Universal Declaration of Human Rights (UDHR): Adopted by the United Nations,
the UDHR sets out fundamental human rights to be universally protected, impacting
both state policies and individual rights globally.

Nature of International Law

1. Voluntary

Explanation:
International law is fundamentally based on state consent. States voluntarily agree to be bound
by treaties and customary norms, meaning that no state is forced to accept obligations imposed
by a global legislator.
Example:
When states ratify treaties like the Geneva Conventions or the Paris Agreement on climate
change, they do so of their own free will. If a state chooses not to ratify a treaty, it is not legally
bound by its provisions.

2. Flexible

Explanation:
The system of international law is designed to evolve in response to changing global conditions,
emerging challenges, and shifting political landscapes.
Example:
As new issues arise—such as cybersecurity, space exploration, or environmental degradation—
international legal norms are adapted or newly formulated, as seen in emerging discussions
around cyber law and sustainable development.

3. Reciprocal

Explanation:
International law creates a system of mutual rights and duties. When a state enjoys a particular
right under international law, it also has corresponding obligations toward other states.
Example:
Trade agreements like those under the World Trade Organization (WTO) ensure that while
states benefit from open markets, they also must adhere to agreed-upon standards and dispute
resolution processes.

4. Decentralized

Explanation:
There is no single global legislature or executive power that enforces international law. Instead,
it is maintained through a network of treaties, customary practices, and institutions, with
enforcement often relying on self-help, diplomacy, or dispute settlement bodies.
Example:
The International Court of Justice (ICJ) can issue judgments, but it lacks a coercive power
to enforce them directly. States usually comply to preserve their international reputation and
reciprocal relationships.

5. Cooperative

Explanation:
International law provides a framework for cooperation on issues that transcend national
borders, facilitating collective action to solve common problems.
Example:
Multilateral treaties such as those governing environmental protection (e.g., the Paris
Agreement) or non-proliferation help states work together on issues of global significance.

6. Advisory

Explanation:
A significant portion of international law plays an advisory role, helping guide the development
of future norms and informing states and international organizations of best practices.
Example:
The ICJ’s advisory opinions—though non-binding—offer important guidance on the
interpretation and application of international law in complex cases, such as issues related to
human rights and state sovereignty.

7. Customary

Explanation:
Beyond written treaties, many norms become binding as customary international law through
consistent and widespread state practice combined with a belief that such practice is legally
obligatory (opinio juris).
Example:
The principle of diplomatic immunity is widely recognized not because of a single treaty, but
because it has been consistently practiced by states over time.

8. Universality

Explanation:
International law is intended to serve the common interests of the entire international
community, promoting norms that are universally applicable rather than being tailored to
individual state interests.
Example:
Jus cogens norms—such as the prohibition against genocide or torture—apply to all states
regardless of their specific agreements, reflecting universal moral and legal standards.

9. Pluralist

Explanation:
International law is shaped by a diversity of cultural, historical, and philosophical traditions. It
incorporates perspectives from different regions and legal systems, which enrich its content
and application.
Example:
Human rights law, for instance, reflects not only Western legal ideas but also indigenous and
non-Western concepts of dignity and justice, leading to debates and gradual harmonization
across different legal cultures.

10. Evolving

Explanation:
The content and interpretation of international law are not static. They adapt as new global
challenges emerge and as the international community’s values and technological contexts
change.
Example:
The rise of cyberspace as a domain of conflict has led to discussions about developing new
rules for cyber warfare and protecting digital infrastructure.

11. Asymmetry
Explanation:
Power disparities among states influence both the creation and the enforcement of international
law. More powerful states often have greater influence in shaping legal norms, while weaker
states may struggle to enforce their rights.
Example:
Historically, Western states have played a dominant role in formulating international norms,
though this dominance is increasingly contested by rising powers like China and India, which
advocate for a more equitable international legal order.

12. Contested

Explanation:
International law is subject to ongoing debates and controversies regarding its legitimacy,
scope, and effectiveness. Different schools of thought—such as legal positivism and natural
law—offer competing views on its foundations and application.
Example:
The International Criminal Court (ICC) has been at the center of controversies, with some
arguing that it unfairly targets certain regions or political leaders, while others claim it is
essential for accountability in international conflicts.

Scope of International Law

International law is a broad and evolving legal framework that governs relations between states,
international organizations, and, in some cases, individuals. It plays a critical role in ensuring
global stability, regulating trade, protecting human rights, and addressing environmental
challenges. Below is a detailed explanation of its key areas.

1. International Peace and Security

One of the primary objectives of international law is to maintain global peace and security. It
establishes rules and norms to prevent conflicts between states, regulate the use of force, and
govern the conduct of war. The United Nations Charter (1945) prohibits the use of force
against the territorial integrity or political independence of any state, except in cases of self-
defense or when authorized by the United Nations Security Council (UNSC). Additionally,
international humanitarian law, including the Geneva Conventions, sets guidelines for the
protection of civilians and combatants during armed conflicts. Institutions like
the International Court of Justice (ICJ) and the International Criminal Court (ICC) play
key roles in resolving disputes and holding war criminals accountable. For instance, in
the Russia-Ukraine conflict (2022–present), international law has been instrumental in
addressing war crimes and imposing sanctions.

2. Human Rights

International law provides a framework for protecting fundamental human rights, ensuring that
individuals are treated with dignity regardless of their nationality. The Universal Declaration
of Human Rights (UDHR, 1948) serves as the foundation for human rights law, while legally
binding treaties like the International Covenant on Civil and Political Rights (ICCPR,
1966) and the International Covenant on Economic, Social, and Cultural Rights
(ICESCR, 1966) establish enforceable obligations for states. Various international courts and
organizations, such as the United Nations Human Rights Council (UNHRC) and
the European Court of Human Rights (ECHR), monitor and address violations. A notable
case is Gambia v. Myanmar (2019), where the International Court of Justice
(ICJ) investigated Myanmar for human rights abuses against the Rohingya population.

3. International Trade and Investment

International law plays a vital role in regulating trade and investment between nations, ensuring
fairness and protecting investors. The World Trade Organization (WTO) establishes rules
for international trade, resolving disputes between countries and promoting free and fair trade.
Principles such as Most-Favored-Nation (MFN) treatment ensure that all trade partners
receive equal treatment, preventing discrimination. Additionally, bilateral investment treaties
(BITs) protect foreign investors from unfair treatment by host governments. Investment
disputes are often settled through bodies like the International Centre for Settlement of
Investment Disputes (ICSID). For example, trade disputes between the United States and
China have been handled under WTO mechanisms, showcasing the importance of
international law in regulating economic relations.

4. Environmental Protection
As environmental issues become more pressing, international law provides mechanisms for
global cooperation on climate change, pollution, and biodiversity conservation. Treaties such
as the Paris Agreement (2015) commit nations to reducing greenhouse gas emissions and
addressing climate change collectively. Legal principles such as the Polluter Pays
Principle and the Precautionary Principle guide states in implementing environmental
regulations. Organizations like the United Nations Framework Convention on Climate
Change (UNFCCC) coordinate international efforts, while tribunals like the International
Tribunal for the Law of the Sea (ITLOS) resolve disputes over marine pollution. The success
of agreements such as the Montreal Protocol (1987), which led to the reduction of ozone-
depleting substances, highlights the effectiveness of environmental international law.

5. International Organizations and Governance

International law provides the legal foundation for the establishment and operation of
international organizations, which play essential roles in global governance. Institutions like
the United Nations (UN), World Trade Organization (WTO), and International Monetary
Fund (IMF) function under legal frameworks that regulate their authority, responsibilities, and
interactions with member states. These organizations help coordinate international efforts in
areas such as security, trade, economic development, and public health. For example, during
the COVID-19 pandemic, the World Health Organization (WHO) played a key role in
guiding global health policies and coordinating vaccine distribution. The legal principles
governing these organizations ensure their accountability and effectiveness in addressing
global challenges.

Basis of International Law and general Principles of International Law:

The general principles of international law are foundational rules that guide how states
interact with each other and maintain order in the global community. These principles ensure
fairness, respect, and cooperation among nations. Let’s break them down with simple
explanations and examples:

1. Sovereign Equality
  What it means: All states are equal under international law, regardless of their size,
power, or wealth. No state is superior to another.

 Example: In the United Nations General Assembly, every country, whether large (like
the USA) or small (like Monaco), has one vote. This reflects the principle of sovereign
equality.

2. Good Faith

 What it means: States must act honestly and sincerely in fulfilling their international
obligations, such as following treaties and agreements.

 Example: If two countries sign a trade agreement, they must implement it honestly and
not try to cheat or undermine it.

3. Non-Intervention

 What it means: States cannot interfere in the internal affairs of other states. This
protects the sovereignty and independence of each country.

 Example: Country A cannot send troops or support rebels to overthrow the government
of Country B, as this would violate the principle of non-intervention.

4. Prohibition of Force

 What it means: States are not allowed to use aggressive force against other states. The
only exceptions are self-defense or actions authorized by the UN Security Council.

 Example: The invasion of one country by another (like Iraq’s invasion of Kuwait in
1990) is prohibited under international law unless it is in self-defense or approved by
the UN.

5. Peaceful Settlement of Disputes

  What it means: States must resolve conflicts peacefully, without resorting to war or
violence. Methods include negotiation, mediation, arbitration, or going to international
courts.

 Example: India and Pakistan have used diplomatic talks and third-party mediation to
resolve disputes over Kashmir, rather than escalating to full-scale war.

6. Self-Determination of Peoples

 What it means: Groups of people with a shared identity and connection to a territory
have the right to determine their political status and pursue their development.

 Example: South Sudan exercised its right to self-determination and became an

independent state in 2011 after a referendum.

7. Sovereign Immunity

 What it means: States and their property are immune from the legal jurisdiction of
other states’ courts. This promotes mutual respect and cooperation.

 Example: If a foreign diplomat commits a crime in another country, they cannot be

prosecuted in that country’s courts due to sovereign immunity.

8. Pacta Sunt Servanda

 What it means: “Agreements must be kept.” States are obligated to follow treaties and
agreements they have signed in good faith.

 Example: The Paris Agreement on climate change requires countries to reduce carbon
emissions. States that signed it are legally bound to follow its terms.

9. Jus Cogens

 What it means: These are fundamental, non-negotiable principles of international law

that no state can violate. They include prohibitions on genocide, slavery, and torture.
  Example: The prohibition of genocide is a jus cogens norm. No state can legally
commit or support genocide, even if they claim it is in their national interest.

Summary of General Principles

Principle Explanation Example

All states are equal under Every country has one vote in the
Sovereign Equality
international law. UN General Assembly.

States must act honestly in fulfilling Implementing trade agreements

Good Faith
international obligations. sincerely.

No supporting rebels to
States cannot interfere in the internal
Non-Intervention overthrow another country’s
affairs of other states.
government.

States cannot use aggressive force,

Iraq’s invasion of Kuwait was a
Prohibition of Force except in self-defense or UN
violation of this principle.
authorization.

Peaceful Settlement States must resolve conflicts India and Pakistan using
of Disputes peacefully. mediation for Kashmir disputes.

Self-Determination Groups have the right to determine South Sudan’s independence

of Peoples their political status. through a referendum.

States and their property are immune Diplomats cannot be prosecuted

Sovereign Immunity
from foreign courts. in the host country’s courts.

Countries must follow the Paris

Pacta Sunt Servanda Agreements must be kept.
Agreement on climate change.

Fundamental principles that cannot be The prohibition of genocide is

Jus Cogens
violated (e.g., no genocide, slavery). absolute and applies to all states.
These principles form the backbone of international law, ensuring that states coexist peacefully,
respect each other’s sovereignty, and work together to address global challenges.

Relationship Between Private and Public International Law

Public international law and private international law are two distinct branches that govern
legal relations across borders, but they often intersect and influence each other.

Public International Law: This branch governs the relationships between sovereign nations
and international organizations. It establishes legal standards on issues such as human rights,
environmental protection, and the conduct of war. For example, the Geneva Conventions set
rules for humanitarian treatment during armed conflicts.

Private International Law: Also known as "conflict of laws," this branch addresses disputes
involving private individuals or entities that cross international borders. It determines which
jurisdiction's laws apply to a particular case and how foreign judgments are recognized and
enforced. For instance, in cases of international business contracts or cross-border family
disputes, private international law provides the framework for resolving such issues.

Interrelationship and Example:

 Investor-State Dispute Settlement (ISDS): ISDS mechanisms allow private investors

to bring claims against sovereign states under international treaties. This is a clear
intersection where private parties utilize public international law frameworks to resolve
disputes. For example, Wall Street speculators have funded lawsuits against
governments over environmental laws impacting corporate profits, leveraging ISDS
provisions.

The Boll Case: This case exemplifies the interaction between public and private
international law. A dispute arose concerning the guardianship of a child with ties to
both Sweden and the Netherlands. The International Court of Justice had to interpret
the Hague Convention of 1902 to resolve the conflict, highlighting how international
agreements (public international law) can influence private legal matters like
guardianship.
Human Rights Considerations: Public international law's emphasis on human rights
can impact private international law, especially in cross-border family disputes or the
recognition of foreign judgments affecting individual rights. For example, adherence to
international human rights standards may influence domestic courts' decisions in
private disputes.

Conclusion: While public and private international law operate in different spheres—
public international law focusing on state-to-state relations and private international law
addressing cross-border disputes between private parties—they are interconnected.
Treaties and conventions under public international law often shape domestic laws
governing private international matters. Mechanisms like ISDS illustrate how private
entities can engage with public international law to resolve disputes with states.
Understanding this interplay is essential for navigating the complexities of international
legal systems.

Public International Law vs. Private International Law

1. Definition and Scope

Public International Law governs the relationships between sovereign states and
international organizations. It lays down legal principles that help maintain order and
peace between nations. It focuses on broad international concerns such as diplomatic
relations, human rights, environmental protection, and international security. This body
of law establishes norms for how states should interact with each other and how they
should be held accountable under global frameworks.

Private International Law, also known as the "conflict of laws," deals with legal
disputes involving private individuals, businesses, or entities from different countries.
When legal conflicts arise in matters such as contracts, marriage, divorce, child custody,
inheritance, or business dealings across borders, private international law helps
determine which jurisdiction and laws should be applied. It ensures fairness in cross-
border legal issues while resolving disputes effectively.

2. Nature and Subjects

Public International Law applies primarily to:

 States (Countries) – Governs diplomatic relations, war, peace, and territorial
sovereignty.

 International Organizations – Deals with entities such as the United Nations, the
International Criminal Court (ICC), and the World Trade Organization (WTO).

 Individuals (in limited cases) – Human rights violations, war crimes, and crimes
against humanity (e.g., cases before the International Criminal Court).

Private International Law applies to:

 Individuals – In cases such as marriage, divorce, and inheritance when the parties
belong to different nations.

 Corporations & Businesses – Governs business contracts, transactions, and disputes

involving companies from different legal jurisdictions.

 Institutions – Covers issues like jurisdiction over international arbitration, trade law
disputes, and cross-border property ownership.

3. Jurisdiction and Sources of Law

Public International Law:

 Jurisdiction is based on international treaties and agreements. These agreements

define the obligations of states and ensure adherence to international legal principles.

 Sources of Public International Law include:

o Treaties & Conventions – E.g., The Geneva Conventions, United Nations

Charter.

o Customary International Law – Legal norms developed over time through

consistent state practice.

o General Principles of Law – Common legal concepts recognized by major

legal systems worldwide.

o Judicial Decisions & Legal Scholarship – Decisions from international courts

and writings of legal scholars.
 Private International Law:

 Jurisdiction is based on domestic laws and international agreements. Courts must

determine which nation's laws apply to a particular case.

 Sources of Private International Law include:

o National Laws – Each country has its own set of laws governing conflicts of
jurisdiction.

o Bilateral & Multilateral Treaties – E.g., The Hague Convention on Private

International Law.

o Conflict of Law Rules – Legal principles that determine which country’s law
should apply in cross-border disputes.

4. Scope and Application

Public International Law covers areas such as:

 State sovereignty & territorial disputes – Defines borders and resolves conflicts
between nations.

 International human rights law – Protects fundamental human rights worldwide.

 Laws of war & conflict resolution – Regulates warfare and provides protection to
civilians during armed conflicts.

 Environmental law – International agreements to combat climate change and protect

biodiversity.

Private International Law applies to:

 Civil & Commercial Matters – Contracts, sales, and trade disputes involving multiple
countries.

 Family Law – Marriage, divorce, adoption, and child custody cases involving different
nationalities.

 Property & Inheritance Law – Ownership disputes over property located in different
countries.
 5. Enforcement Mechanism

Public International Law:

 International courts and tribunals enforce it. Key institutions include:

o International Court of Justice (ICJ) – Settles disputes between states.

o International Criminal Court (ICC) – Tries individuals for crimes like

genocide and war crimes.

o United Nations (UN) – Imposes sanctions, peacekeeping missions, and

diplomatic resolutions.

o Economic Sanctions & Military Intervention – Countries may impose

sanctions or intervene to enforce compliance with international law.

Private International Law:

 Enforced through domestic courts of individual nations. Courts decide which

jurisdiction and legal principles should be applied in cross-border disputes.

 Recognition & Enforcement of Foreign Judgments – If a court issues a ruling in one

country, private international law determines whether other countries should recognize
and enforce that judgment.

 Arbitration & Mediation – Alternative dispute resolution methods, such as

international arbitration (e.g., under the UNCITRAL Arbitration Rules), help resolve
private international disputes efficiently.

6. Binding

Public International Law:

All nations are required to follow this law which is based on either customary rules or treaties
established

Private International law:

Countries are not bound by Private International Law. However their legal system recognizes
it as a set of rules and principles for governing.
7. Examples

Public International Law Examples:

 The United Nations Charter – Establishes principles for maintaining international

peace and security.

 The Geneva Conventions – Sets rules for humanitarian treatment in war.

 The Paris Agreement on Climate Change – Aims to reduce global carbon emissions.

 Commander Abhinandan Varthaman Case

 The capture and subsequent release of Indian Air Force Wing Commander Abhinandan
Varthaman by Pakistan in February 2019 is a notable instance highlighting the
application of Public International Law, particularly the Geneva Conventions
concerning the treatment of prisoners of war (POWs).

 Background:

On February 27, 2019, during escalating tensions between India and Pakistan, Wing
Commander Varthaman's MiG-21 Bison aircraft was shot down in a dogfight, leading
to his capture by Pakistani forces in Pakistan-administered Kashmir.

 International Legal Framework:

The Third Geneva Convention of 1949 outlines the treatment standards for POWs,
ensuring humane treatment without adverse distinction and protecting them against acts
of violence, intimidation, insults, and public curiosity.

 Application to Varthaman's Case:

Treatment in Captivity: Initial videos released by Pakistani authorities depicted

Varthaman blindfolded and bloodied, raising concerns about potential violations of
Article 13 of the Third Geneva Convention, which protects POWs from public curiosity
and humiliation.

 Repatriation: Pakistan's decision to release Varthaman on March 1, 2019, was

officially termed a "gesture of peace." However, reports suggest that international
 diplomatic pressures, including potential threats of escalation from India, influenced
this decision.

 Significance in Public International Law:

This incident underscores the importance of adhering to international humanitarian

laws during armed conflicts. The treatment and timely release of Wing Commander
Varthaman highlighted the role of the Geneva Conventions in ensuring the rights and
protections of captured military personnel, even amidst heightened tensions between
nations.

Private International Law Examples:

 Marriage & Divorce Disputes – A couple from different countries filing for divorce
in an international court.

 Business Contracts – A multinational corporation signing a contract with a foreign

company, leading to a dispute over which country's law applies.

 Child Custody Across Borders – A custody dispute between parents living in separate
countries, requiring determination of applicable laws.

 Real Estate Ownership Issues – A person owning property in multiple countries and
facing legal issues over inheritance and taxation

o Haddadi v. Haddadi (2019) UKSC

Facts:

 A couple, both Iranian nationals, lived in the UK and filed for divorce.

 One party argued that the case should be heard in Iran instead of the UK.

Legal Issue:

 Whether the UK or Iranian courts had jurisdiction over the divorce under
private international law.

Ruling:
  The UK Supreme Court ruled that since the couple resided in the
UK, English law applied, even though they were Iranian nationals.

The case emphasized that residency, not nationality, determines jurisdiction in

family law matters.

Importance of International Law

International law serves as the foundational framework governing relations between nations,
organizations, and individuals on a global scale. Its importance is multifaceted, encompassing
various aspects that contribute to global stability, cooperation, and justice. Below are key
reasons highlighting the significance of international law:

1. Provides Stability and Order in International Relations: By establishing clear rules

and norms, international law ensures predictable interactions among states, reducing
the likelihood of conflicts and misunderstandings.

2. Facilitates Peaceful Resolution of Disputes: It offers legal mechanisms, such as

arbitration and adjudication, allowing states to resolve disagreements amicably without
resorting to force.

3. Promotes Cooperation on Global Issues: International law enables collaborative

efforts in areas like environmental protection, trade, and the management of shared
resources, fostering collective problem-solving.

4. Protects Territorial Sovereignty: It upholds the principle that each state has authority
over its territory, discouraging unilateral aggression and territorial infringements.

5. Upholds Universal Human Rights: Through instruments like the Universal

Declaration of Human Rights, international law safeguards fundamental human rights
and freedoms globally.

6. Ensures Accountability for International Crimes: It seeks to hold individuals and

states accountable for grave offenses such as genocide, war crimes, and crimes against
humanity, promoting justice and deterrence.

7. Regulates Diplomatic Relations: By codifying standards for diplomatic interactions

and immunities, international law facilitates effective and respectful communication
between states.
8. Supports Global Transportation and Communication: It establishes laws governing
airspace, outer space, and maritime domains, ensuring safe and efficient global travel
and communication.

9. Framework for Transnational Business: International law provides the legal basis for
international trade, aviation, and intellectual property rights, ensuring fair and regulated
economic activities across borders.

10. Basis for Collective Security: It underpins organizations like the United Nations
Security Council, enabling collective responses to threats against international peace
and security.

11. Prohibits Inhumane Practices: International law outlaws universally condemned

practices such as slavery, torture, and piracy, reinforcing global ethical standards.

12. Allows Legal Redress Across Borders: It provides mechanisms for individuals to seek
justice in foreign courts under specific conditions, ensuring access to legal remedies
beyond one's own country.

13. Protects Rights of Foreign Nationals: By setting standards against discrimination and
ensuring access to justice, international law safeguards the rights of aliens within host
states.

14. Regulates Conduct During Armed Conflicts: International humanitarian law,

including the Geneva Conventions, establishes norms for humane conduct during war,
protecting combatants and non-combatants alike.

15. Provides Dispute Resolution Mechanisms: It offers avenues like arbitration and
judicial settlements for resolving interstate disputes, maintaining international peace
and order.

16. Codifies Customary Practices: International law systematizes customary practices

between nations, transforming them into binding legal obligations.

17. Supports Self-Determination and Decolonization: It upholds the right of peoples to

self-determination, facilitating decolonization and the emergence of new sovereign
states.
 18. Addresses Transboundary Environmental Issues: International law provides legal
remedies for environmental challenges that cross national borders, such as pollution
and illegal fishing.

19. Facilitates Global Conservation Efforts: It enables collaborative initiatives for

environmental protection, including treaties aimed at preserving the ozone layer and
combating climate change.

20. Coordinates Global Health Responses: International law allows for unified action on
health crises, from pandemics to tobacco control, ensuring coordinated public health
strategies.

21. Outlaws Crimes Against Humanity: Under peremptory norms (jus cogens),
international law prohibits egregious crimes, reinforcing universal moral and legal
standards.

22. Ensures Sovereign Equality: It upholds the principle that all states are equal under the
law, promoting fairness and mutual respect in international relations.

23. Establishes International Organizations: International law provides the legal

foundation for entities like the UN and WTO, facilitating global governance and
cooperation.

24. Reflects Common Values: It embodies the shared values and unity of the international
community, fostering a sense of global identity and purpose.

25. Promotes Progressive Development: International law aims to evolve and improve
norms over time, addressing emerging global challenges and promoting the global
good.

Why is International Law Considered a "True Law"?

There has been an ongoing debate about whether international law qualifies as "true
law" because it lacks a centralized enforcement authority like domestic legal systems.
However, international law is considered a true law because it fulfills essential legal functions
and is widely recognized by states, courts, and international organizations. Here’s why:

1. It Creates Binding Legal Obligations

  International law imposes legal obligations on states, organizations, and sometimes
individuals.

 States follow treaties, conventions, and customary international law because they
recognize them as legally binding, not just moral or political guidelines.

 Example: The United Nations Charter (1945) is legally binding on all member states.

2. It Has Defined Sources of Law

International law, like domestic law, has formal sources outlined in Article 38 of the
International Court of Justice (ICJ) Statute, which include:

 Treaties and conventions (e.g., Geneva Conventions)

 Customary international law (e.g., diplomatic immunity)

 General principles of law (e.g., good faith, equity)

 Judicial decisions and legal writings

These sources ensure consistency and legitimacy, making international law function similarly
to domestic legal systems.

3. It Has Courts and Legal Institutions

Although enforcement is weaker than in domestic law, international courts and

tribunals exist to resolve disputes and hold violators accountable:

 International Court of Justice (ICJ) – Settles disputes between states.

 International Criminal Court (ICC) – Prosecutes individuals for war crimes and
genocide.

 WTO Dispute Settlement Body – Resolves trade disputes.

These institutions demonstrate that international law operates like a formal legal system.

4. It Influences and Regulates State Behavior

  Despite lacking a global police force, international law effectively regulates state
behavior.

 States comply due to diplomatic pressure, sanctions, reciprocity, and reputation

concerns.

 Example: The Montreal Protocol (1987) on ozone protection has been one of the most
successful environmental agreements, with nearly universal compliance.

5. It Provides Dispute Resolution Mechanisms

 Just like national laws provide courts for resolving disputes, international law
offers legal frameworks for states and individuals to settle conflicts.

 Example: South China Sea Arbitration (Philippines v. China, 2016) – The tribunal
ruled against China’s maritime claims.

6. It Has Enforcement Mechanisms

 Though weaker than domestic enforcement, international law is enforced through

diplomatic actions, economic sanctions, and collective security measures.

 Example: UN Security Council Resolutions – The UNSC imposes sanctions on

countries violating international law (e.g., North Korea’s nuclear program).

 Example: Economic Sanctions on Russia (2022) for invading Ukraine show

international law in action.

7. States Voluntarily Accept International Law

 States enter into treaties and agreements voluntarily, acknowledging international law
as legitimate and binding.

 Example: Countries voluntarily ratify the Rome Statute (1998) to accept ICC
jurisdiction.

Proponents: International Law as a True Law

L. Oppenheim, one of the leading scholars of international law, argued that international law
is a true legal system because it is based on the consent of sovereign states. According to him,
law does not require a superior enforcing authority to be considered valid; rather, it derives its
legitimacy from the voluntary acceptance of states. He maintained that states enter into
agreements, such as treaties and conventions, that create binding legal obligations, and these
obligations are enforced through diplomatic mechanisms, economic sanctions, and
international courts. Even though international law lacks a centralized enforcement system, its
effectiveness lies in the fact that states recognize its necessity for maintaining global order. The
UN Charter, which all member states voluntarily adhere to, is a strong example of how
international law operates as a binding legal framework.

J.L. Brierly reinforced the idea that international law is a structured legal system by
emphasizing that law does not always require a coercive force to be recognized as binding. He
pointed out that even in domestic legal systems, certain fundamental principles, such as
constitutional law, are not always directly enforced but are still followed. Brierly argued that
international law functions similarly by establishing a system of norms that regulate state
behavior. The International Court of Justice (ICJ), for example, has played a significant role in
resolving disputes between states, such as in Nicaragua v. United States (1986), where the ICJ
ruled against the U.S. for violating Nicaragua’s sovereignty. This case illustrates that
international law is not merely theoretical but has practical applications in regulating the
conduct of states.

J.J. Starke took a pragmatic approach to defending the validity of international law. He
acknowledged that while it lacks police power like domestic law, it is still enforced through
various means such as economic sanctions, diplomatic pressure, and, in extreme cases, military
intervention. He noted that international law is not ineffective simply because it lacks a global
police force; rather, states comply with it due to political, economic, and reputational
consequences. An example of this is the sanctions imposed by the United Nations on North
Korea in response to its nuclear program. Even without a centralized enforcer, the threat of
economic isolation compels states to adhere to international legal norms.

H.L.A. Hart, a renowned legal positivist, provided a theoretical foundation for understanding
international law as a legitimate legal system. He argued that law consists of two types of rules:
primary rules, which impose obligations, and secondary rules, which govern how laws are
recognized and applied. According to Hart, international law contains both of these elements—
primary rules in the form of treaties and customary international law, and secondary rules in
the form of institutions like the ICJ and the United Nations that oversee the interpretation and
implementation of these laws. For instance, the Geneva Conventions provide primary rules
regarding the conduct of war, while the ICJ ensures their application, thus proving that
international law operates as a structured legal system.

Frederick Pollock further supported the legitimacy of international law by emphasizing the
recognition of international legal norms. He argued that legal systems evolve over time and
that international law, while still developing, is recognized as binding by states. Pollock pointed
out that the creation of the International Criminal Court (ICC) in 2002 marked a significant
advancement in the enforcement of international legal norms, as it allows for the prosecution
of individuals for crimes such as genocide and war crimes. This development demonstrates that
international law has evolved to include mechanisms for individual accountability, further
reinforcing its legitimacy as a true legal system.

Opponents: International Law as Mere Morality or Guidelines

Despite the strong arguments in favor of international law, critics like John Austin dismissed
it as “positive morality” rather than actual law. Austin’s "command theory of law" states that
a true legal system must consist of commands issued by a sovereign authority, backed by
sanctions, and enforced by a superior power. Since international law lacks a global sovereign
authority and cannot impose penalties directly, he argued that it does not qualify as real law.
Austin pointed to instances where powerful states, such as the United States, ignored ICJ
rulings, such as in Nicaragua v. United States (1986), to demonstrate that international law
lacks binding force. He maintained that international agreements are mere political
understandings rather than enforceable legal obligations.

Thomas Erskine Holland similarly dismissed international law as a collection of diplomatic

customs rather than a formal legal system. He argued that law must have a superior authority
that enforces compliance, and since international law depends on the voluntary participation of
states, it does not possess the necessary characteristics of law. According to Holland, treaties
and agreements between nations are political tools rather than legal rules because their
enforcement is inconsistent. For instance, despite numerous United Nations resolutions
condemning human rights violations, countries such as China and Russia have frequently
ignored them without facing direct legal consequences, proving that international law lacks
true coercive power.

Jeremy Bentham, another critic of international law, focused on its lack of coercive force. He
argued that for a law to be effective, it must have a centralized authority to enforce it upon
those who disobey. Since international law allows states to selectively follow or ignore rules
based on their interests, Bentham considered it a weak system of governance rather than actual
law. He pointed to Russia’s annexation of Crimea in 2014 as an example, where international
law declared the act illegal, yet no superior force was able to reverse it. This, he argued,
highlights the fundamental weakness of international law—it is only followed when convenient
for states.

Montague Bernard Browne took a more political approach, viewing international law as a
system of negotiations rather than legal obligations. He argued that states follow international
rules only when they align with their national interests and ignore them when they conflict with
domestic priorities. He dismissed the idea that international law could function as a legal
system because it lacks the ability to impose uniform standards on all nations. The United
States’ withdrawal from the Paris Climate Agreement in 2017 supports Browne’s argument,
as it demonstrated that international treaties, while framed as binding agreements, can be
disregarded at will.

Criticism of International Law

 Even though international law has gained recognition, some key criticisms remain:
 Lack of Central Authority: No global government enforces international law like
domestic governments do.
 Selective Enforcement: Some nations (e.g., U.S., Russia, China) can violate
international law without punishment due to their power.
 No Direct Enforcement Mechanism: Unlike national laws enforced by police and
courts, international law relies on diplomacy and voluntary compliance.
Difficulty in Universal Agreement: Since each country has its own legal system,
enforcing a single legal framework worldwide is difficult.
True Basis of International Law

Basis of International Law

There are two main theories which attempt to explain the basis of international law;
i) Theories as to law of nature
ii) Positivism

i) Theories as to the Law of Nature

In 16th and 17th century, the jurists were of the view that the international law is based on law
of nature. according to this theory, International law has been followed by States because it is
the law of nature which is higher law. According to them natural law confers binding force on
international law. According to Grotius natural law, is the 'dictate of right reason'. This theory
has been criticized. The definition of the term 'natural law' is very vague and uncertain as each
follower gives a different definition. Different meanings are ascribed such as reason, justice,
utility, general interest of international community etc. It must be admitted that the law of
nature has greatly influenced the growth of international law, but the theory is not based on
realities and actual practice of the States.

 Key Idea: States follow international law because it aligns with the law of nature,
which is a higher, moral law.

 Example: The Romans divided laws into:

o Jus civile (laws of a specific state),

o Jus gentium (laws common to all nations),

o Jus naturale (natural law based on reason and morality).

 Supporters: Thinkers like Grotius, Pufendorf, and Vattel argued that natural law
gives international law its binding force. Grotius, for instance, called natural law the
"dictate of right reason."

 Criticism:

o The concept of natural law is vague and can mean different things (e.g., justice,
reason, utility).
 o It is not based on the actual practices of states, making it more philosophical
than practical.

Theory of Fundamental Rights (Under Natural Law)

This theory suggests that before states existed, humans lived in a "natural state" where they had
fundamental rights like independence, equality, and self-preservation. As this theory is based
on naturalistic view, it is contended that like man, States also possessed certain fundamental
rights because so far there is no world authority over and above the States. Similarly, states, in
the absence of a higher world authority, possess these fundamental rights.

Criticism:

 It doesn’t clearly explain the basis of international law.

 It assumes states have rights similar to individuals, which is debatable.

ii) Positivism

This theory is based on the actual practices and consent of states. It argues that international
law is binding because states have agreed to it, either through treaties or customs.

It has been pointed out that the will of States is the main source of international law. It is said
that the international law is binding because States have consented for the rules of international
law. Law is will of states. Starke has rightly stated: "International law can in logic be reduced
to a system of rules depending for their validity only on the facts that States have consented to
them." According to Italian jurist, Anzillotti, the binding force of international law is based on
a fundamental principal known as 'Pacta Sunt Servanda' (agreements entered into by States
must be respected and followed in good faith). But the Positivist theory fails to explain the
binding force of customary rules of international law.

 Key Idea: International law is valid because states have consented to it. The binding
force comes from the principle of Pacta Sunt Servanda (agreements must be kept in
good faith).

 Supporters: Thinkers like Anzilotti, Bynkershoek, and Oppenheim are key figures
in this school of thought.

Theory of Consent
This theory, rooted in positivism, states that international law is binding because states have
given their consent to it. For example, treaties are binding because states have agreed to them.

Criticism:

It doesn’t explain customary international law, which doesn’t require explicit consent.

It struggles to explain how new states are bound by existing international laws they didn’t
directly consent to.

Auto-Limitation Theory

This theory suggests that states voluntarily limit their own powers to follow international law.
Each state has an independent will, which is free from external control and through self-
restraint, they agree to abide by international rules.

 Criticism:

o If states can limit themselves, they can also un-limit themselves, making the
theory weak.

o It assumes states have a will, which is not always clear in practice.

Pacta Sunt Servanda

This is a key principle in international law, meaning "agreements must be kept." According
to Anzilotti, this principle is the foundation of international law. States are bound to follow
treaties because they have agreed to them in good faith.

 Criticism:

o This principle doesn’t explain why customary international law is binding, as

it doesn’t rely on explicit agreements.

o The principle itself is part of customary law, creating a circular argument.

Summary

 Natural Law Theory: International law is based on higher moral principles like justice
and reason. It’s more philosophical but criticized for being vague and impractical.
  Positivism: International law is based on the consent and practices of states. It focuses
on treaties and customs but struggles to explain customary laws and new states.

 Pacta Sunt Servanda: Agreements between states must be respected, but this doesn’t
fully explain the binding nature of all international laws.

Why is international law called a permissive law, not a coercive law?

International law is often called "permissive law" because it primarily functions through
the consent of states rather than being imposed by a central authority. Unlike domestic law,
where a sovereign power enforces rules on individuals, international law operates in
an anarchic system where states voluntarily agree to follow certain rules.

1. Lack of a Central Enforcement Authority

 Unlike domestic legal systems, which have police forces, courts, and penalties to
enforce laws, international law does not have a global government or enforcement
body with absolute authority over states.

 Compliance is based on mutual agreement rather than force.

2. Sovereignty of States

 States are sovereign entities, meaning they cannot be forced to follow international
laws unless they voluntarily agree to them through treaties, conventions, or
customary international law.

 Enforcement depends on diplomatic measures, sanctions, or collective action rather

than direct coercion.

3. Compliance Through Consent

 Most international laws, such as treaties and agreements, are binding only when
states voluntarily sign and ratify them.

 States comply because they benefit from international cooperation, not because they
are forcibly compelled to do so.

4. Enforcement Through Reciprocity and Reputation

 Compliance is often ensured through reciprocity, meaning states follow rules because
they expect others to do the same (e.g., trade agreements, human rights obligations).
  Violating international law damages a state's reputation and can lead to diplomatic
consequences, economic sanctions, or political isolation.

5. Limited Use of Force

 Unlike domestic law, which uses coercive measures like police action, international
law generally discourages force.

 Bodies like the United Nations Security Council (UNSC) can authorize military
action, but only under specific circumstances (e.g., threats to international peace and
security).

Example of Permissive Nature in International Law:

o The Paris Agreement on Climate Change (2015) allows countries to set their
own emission reduction targets.

o Unlike domestic environmental laws, there is no strict enforcement

mechanism, showing how international law is largely permissive and based
on voluntary participation.

Conclusion:

International law is permissive because it depends on state consent, cooperation, and

diplomatic enforcement rather than coercion. It lacks a central authority with absolute power,
making it more about voluntary compliance than forceful imposition. However,
mechanisms like sanctions, international courts (e.g., ICJ, ICC), and diplomatic
pressure help maintain order and accountability.

What is Municipal Law?

Municipal law, also known as domestic law, refers to the body of law that governs the internal
affairs of a specific country or state. It encompasses laws, regulations and legal principles that
apply within the territory of the state, regulating interactions between individuals and entities
within the state, as well as between individuals and the state itself.

What is International Law?

International law is the body of rules and principles that govern the relationships and
interactions between states and other international actors. It is concerned with issues that
transcend national boundaries, such as diplomacy, trade, human rights and the environment.

Key Differences Between Municipal (Domestic) Law and International Law

 Scope:
Municipal law governs a country’s internal affairs, affecting individuals and institutions
within its borders. International law, by contrast, regulates how states and international
actors interact globally.

 Authority:
Municipal law’s authority comes directly from the state and its constitution.
International law is based on agreements—treaties and customary practices—formed
by the consent of multiple states.

 Enforcement:
Municipal law is enforced by state institutions (courts, police, etc.) with clear penalties.
International law, however, relies largely on voluntary compliance, diplomacy, and
sometimes international courts, making enforcement more challenging.

 Sources:
Municipal law is derived from legislation, judicial decisions, and local customs.
International law is primarily sourced from treaties, conventions, and long-standing
international customs.

 Subject Matter:
Municipal law deals with everyday issues affecting individuals and businesses within a
state. International law addresses matters like diplomacy, trade, human rights, and
environmental issues between states.

Relation between International Law and Municipal Law:

1. Basic Definitions

 Municipal Law:
These are the laws and regulations that govern a country’s internal affairs—how
individuals, businesses, and institutions interact within the state.
  International Law:
This set of rules and agreements regulates relations between states and other
international actors. It includes treaties, customary practices, and general legal
principles that apply at a global level.

2. Dualism

Dualism views international law and municipal law as two entirely separate legal systems.
Here’s what that means:

 Separate Spheres:
In dualist systems, international law exists on its own and does not automatically
become part of a state’s domestic legal system. Instead, there must be a deliberate
process to “transform” or incorporate international rules into national law.

 Transformation Requirement:
For an international treaty or norm to be enforceable by domestic courts, it must be
converted into municipal law through legislation or a similar legal process. Until that
happens, the international rule has no direct effect within the country.

 Practical Example:
In the United Kingdom, for instance, a treaty will only affect domestic law after
Parliament passes an enabling act that gives the treaty effect locally.

3. Monism

Monism sees international law and municipal law as parts of a single, unified legal system. In
this view:

 Unified Legal Order:

When a state ratifies an international treaty, its provisions automatically become part of
the domestic legal order without needing further legislative action.
  Direct Effect:
In monist systems, individuals can directly invoke international law in domestic courts.
If there’s a conflict between domestic law and international obligations, international
law can sometimes take precedence, especially when it comes to fundamental norms
like human rights.

 Practical Example:
Countries such as the Netherlands and France are often seen as having monist systems
because international legal obligations are directly applicable as soon as they are
ratified.

4. Additional Considerations

 Supremacy and Conflict Resolution:

o Supremacy Issues: In some legal systems, domestic (municipal) law is

declared supreme. However, modern trends often favor an interpretation that
harmonizes international and domestic law, sometimes giving international
obligations a higher status when they deal with fundamental principles (like jus
cogens norms) that cannot be overridden by conflicting local laws.

 Self-Executing Treaties:

o Some treaties are drafted so that they automatically become effective

domestically once ratified (self-executing). These are more common in monist
systems, whereas in dualist systems, even self-executing treaties might require
explicit legislative action to have full effect.

 Compliance and Enforcement:

o States are expected to comply with their international obligations and adjust
their municipal laws accordingly. When a state fails to do so, enforcement can
be challenging because international law typically relies on state consent and
cooperation.

 Broader Impacts:
 o Diplomatic Immunity, Human Rights, Trade, War Crimes, Environment:
International law influences many areas of domestic law—from protecting
human rights to regulating trade, prosecuting war crimes, managing
environmental issues, and even granting diplomatic immunity.

o Customary Law and Comparative Methods: Local customs can gain

international legal significance, and comparing different municipal legal
systems helps in shaping international norms.

5. Conclusion

In summary:

 Dualism emphasizes that international law and municipal law are two distinct systems.
For international law to have domestic effect, it must be explicitly incorporated into
municipal law through transformation.

 Monism holds that both levels of law form a single legal system, meaning that once
international law is ratified, it automatically becomes part of the domestic legal order
and can be directly applied in national courts.

Each theory has its advantages and challenges, and many countries use a hybrid approach in
practice. In our increasingly globalized world, finding a harmonious way to integrate
international obligations with domestic legal systems remains essential for strengthening the
rule of law both nationally and globally.

The relationship between international law and municipal law is a complex one, and there
are two main theories that attempt to explain it: dualism and monism.

Dualism

 Separate Systems:
Dualism holds that international law and municipal (domestic) law are two completely
separate systems. They operate independently from each other.

 Incorporation Required:
For an international law rule (like a treaty) to have any effect within a country, it must
first be "translated" into that country’s own laws. This usually happens through:
 o Passing a law in Parliament (legislation)

o Judicial decisions

o Executive orders

 State Sovereignty:
One major advantage of dualism is that it respects the sovereignty of a state. Each state
can choose whether or not to incorporate an international rule into its domestic law.
This gives states the flexibility to decide how international law fits with their own
priorities.

 Potential Drawback:
If a state decides not to incorporate an international rule, then individuals in that state
cannot enforce that rule in domestic courts. This means the state might be able to avoid
following its international obligations.

Monism

 Unified Legal System:

Monism argues that international law and municipal law are parts of one single legal
system. Once a state ratifies an international treaty, its rules automatically become part
of the domestic legal order.

 Direct Effect:
Under monism, international law is supreme. This means that:

o If there is any conflict between domestic law and international law, international
law will prevail.

o Individuals can directly use international law in domestic courts without waiting
for a separate law to be passed.

 Uniformity and Consistency:

Monism promotes the idea that all states should apply international law in the same
way. This can help prevent a situation where a state uses its own laws to ignore
international obligations.
  Potential Drawback:
Critics argue that monism can undermine state sovereignty. States might be forced to
follow international rules even if they conflict with their own domestic needs or
priorities.

In Summary

 Dualism requires that international law must be converted into domestic law before it
can be applied by courts within a state. This respects state sovereignty but can lead to
gaps in the enforcement of international obligations.

 Monism treats international law and domestic law as one unified system, allowing
international rules to be directly enforceable. This ensures consistency and uniformity
but may limit a state's freedom to shape its own laws.

Both theories offer valuable perspectives on how international obligations should interact with
domestic legal systems, and many countries end up using a mix of both approaches in practice.

Different Approaches in Practice

1. Dualist Approach

 Separate Legal Orders:

In dualist systems, international law and domestic law are viewed as two distinct legal
systems. For example, in the United Kingdom, international treaties or norms have no
direct effect on individuals until they are incorporated into domestic law through
legislation, judicial decisions, or royal prerogative.

 State Sovereignty and Flexibility:

This approach respects state sovereignty by allowing a country to decide whether and
how to adopt international law. However, if a state chooses not to incorporate a
particular international rule, its citizens might be unable to enforce that rule in domestic
courts.

2. Monist Approach
  Unified Legal Order:
In monist systems, international law is considered an integral part of the national legal
system. For instance, in the United States, federal courts generally treat international
law as directly effective. This means that when a treaty is ratified, its provisions can
automatically become part of municipal law, and in any conflict, international law takes
precedence.

 Role of the Executive:

In the United States, while courts favor a monist view, the executive branch also plays
a key role by negotiating treaties and sometimes implementing international obligations
through executive orders. This shows that even in a monist system, there is a dynamic
interplay between branches of government in how international law is applied
domestically.

3. Hybrid Approaches

 Mix of Both Theories:

Many states adopt a hybrid or mixed approach. They may automatically give effect to
certain international norms (as in a monist system) while requiring legislative action for
others (a dualist feature). The choice often depends on the subject matter of the treaty,
its importance, and how it fits with the country’s domestic legal priorities.

How International Law Affects Municipal Law

 Legislative Implementation:
A state might pass specific laws to give effect to a treaty it has ratified.

 Judicial Interpretation:
Domestic courts can interpret national laws in a way that aligns with international
obligations.

 Obligations from International Rulings:

If an international tribunal issues a ruling, a state may be required to modify its
municipal law to comply.
How Municipal Law Can Influence International Law

 Interpreting Treaties:
A state’s domestic law might be used as a basis for interpreting the meaning or scope
of a treaty.

 Enforcement of International Obligations:

National courts can be called upon to decide whether a state has breached its
international commitments.

 Implementing International Decisions:

Domestic legal systems may be used to give effect to decisions or rulings from
international courts.

Conclusion

In summary, the relationship between international and municipal law is dynamic and varies
by country:

 Dualist systems (e.g., the United Kingdom) require international law to be transformed
into domestic law before it can be enforced.

 Monist systems (e.g., the United States) tend to allow international law to be directly
applied within the domestic legal order.

 Hybrid approaches combine elements of both, depending on legal, political, and

practical considerations.

Understanding these differences is crucial for grasping how global legal obligations are
integrated into national legal systems and how states meet their international commitments.

The relationship between international law and municipal law in practice varies from state to
state. Some states follow a dualist approach, while others follow a monist approach. Still other
states follow a hybrid approach that combines elements of both dualism and monism.

In the United States, for example, the federal courts have adopted a monist approach to
international law. This means that international law takes precedence over municipal law in
any case of conflict. However, the federal courts have also recognized that the executive branch
of the government has the power to implement international law through executive orders and
treaties. This means that the executive branch can play a significant role in shaping the
relationship between international law and municipal law in the United States.

In the United Kingdom, on the other hand, the courts have adopted a dualist approach to
international law. This means that international law cannot directly affect individuals or their
rights within the United Kingdom until it has been incorporated into municipal law. The
incorporation of international law into municipal law can be done through legislation, judicial
decisions, or royal prerogative.

The relationship between international law and municipal law is a complex one, and there is
no single answer to the question of how the two systems interact. The specific approach that a
state takes will depend on a variety of factors, including its constitutional system, its legal
traditions, and its foreign policy goals.

Here are some examples of how international law can affect municipal law:

 A state may pass a law to implement a treaty that it has ratified.

 A state's courts may interpret a domestic law in a way that is consistent with
international law.

 A state may be obligated to change its domestic law in order to comply with a ruling
from an international court or tribunal.

Here are some examples of how municipal law can affect international law:

 A state's domestic law may be used to interpret a treaty or other international instrument.

 A state's domestic courts may be called upon to decide whether a state has violated its
international obligations.

 A state's domestic law may be used to implement an international court's or tribunal's

ruling.

Conclusion

The relationship between international law and municipal law is a complex and dynamic one.
It is important to understand this relationship in order to understand the global legal system and
how it works.
Case Laws

These cases are landmark decisions that have shaped the relationship between municipal
law (domestic law) and international law. They illustrate how courts in different countries
have interpreted and applied international law within their domestic legal systems. Let’s break
down each case and its significance in a simple and clear way:

1. The Paquete Habana Case (1900)

 What happened: During the Spanish-American War, the US Navy seized two Cuban
fishing vessels, claiming they were enemy property. The owners argued that under
international law, fishing vessels used for peaceful purposes were exempt from seizure
during war.

 Key ruling: The US Supreme Court held that international law is part of US law and
must be applied by US courts. It ruled in favor of the fishermen, stating that the seizure
violated customary international law.

 Why it matters: This case established that international law is integrated into the US
legal system and can be directly applied by domestic courts.

2. The Lotus Case (1927)

 What happened: A French ship (Lotus) collided with a Turkish ship, causing deaths.
Turkey prosecuted the French officer responsible, even though the incident occurred in
international waters. France argued that Turkey had no jurisdiction under international
law.

 Key ruling: The Permanent Court of International Justice (PCIJ) held that municipal
law and international law are presumed to be independent, but this presumption
can be overcome if there is evidence of state consent to international law. The court
sided with Turkey, stating that international law did not prohibit Turkey from exercising
jurisdiction.
  Why it matters: This case highlights the principle of state sovereignty and the idea that
international law applies only if states consent to it.

3. The Costa Rica Packet Case (1913)

 What happened: A British ship was seized by Dutch authorities in the Dutch East
Indies (now Indonesia) for alleged illegal fishing. The owners argued that the seizure
violated international law.

 Key ruling: The British Privy Council held that international law is part of English
law, but it is subordinate to English statute law. This means that if a domestic law
conflicts with international law, the domestic law prevails.

 Why it matters: This case reflects the dualist approach, where international law must
be incorporated into domestic law and does not automatically override it.

4. The Trendtex Trading Corporation Case (1974)

 What happened: A Swiss company sued the Central Bank of Nigeria in English courts
for breaching a contract. Nigeria claimed sovereign immunity under English law.

 Key ruling: The House of Lords held that English courts have the power to disapply
English statute law if it is inconsistent with international law. The court ruled that
Nigeria was not entitled to sovereign immunity in this case.

 Why it matters: This case shows a shift toward recognizing the supremacy of
international law over domestic law in certain situations, even in dualist systems like
the UK.

5. The Filartiga v. Peña-Irala Case (1980)

 What happened: A Paraguayan family sued a Paraguayan official in US courts for

torturing and killing their son in Paraguay. The official argued that US courts had no
jurisdiction over acts committed abroad.
  Key ruling: The US Court of Appeals for the Second Circuit held that US courts have
jurisdiction to hear claims under international law for violations of fundamental
human rights, such as torture, even if the acts occurred outside the US.

 Why it matters: This case opened the door for victims of human rights abuses to seek
justice in US courts under international law, even against foreign officials.

6. The Pinochet Case (1999)

 What happened: Former Chilean dictator Augusto Pinochet was arrested in the UK on
a Spanish warrant for crimes against humanity committed during his rule. Pinochet
claimed immunity as a former head of state.

 Key ruling: The House of Lords held that former heads of state can be arrested and
extradited for crimes against humanity, even if the crimes were committed while
they were in office. Pinochet’s immunity was lifted for these serious international
crimes.

 Why it matters: This case reinforced the principle that no one, not even a former head
of state, is above international law, especially for egregious crimes like torture and
genocide.

Summary of Key Themes

These cases demonstrate how courts around the world have grappled with the relationship
between international law and municipal law. Some key themes include:

1. Integration of International Law: Courts in monist systems (like the US in Paquete

Habana) often treat international law as part of domestic law.

2. Subordination of International Law: In dualist systems (like the UK in Costa Rica

Packet), domestic law may take precedence unless international law is explicitly
incorporated.

3. Human Rights and Accountability: Cases like Filartiga and Pinochet show how
international law can be used to hold individuals accountable for serious human rights
violations, even across borders.
 4. State Sovereignty vs. International Law: Cases like Lotus emphasize the importance
of state consent in applying international law, while Trendtex shows a growing trend
toward prioritizing international law in certain contexts.

Modern Subjects of International law:

The modern subjects of international law are the entities that have the capacity to bear rights
and duties under international law. These entities include:

 States: States are the traditional subjects of international law. They are sovereign
entities that have the capacity to enter into treaties, maintain diplomatic relations, and
engage in other activities under international law.

 International organizations: International organizations are created by states to achieve

common goals. They are legal entities with their own rights and duties under
international law. Examples of international organizations include the United Nations,
the World Trade Organization, and the International Criminal Court.

 Individuals: Individuals are increasingly being recognized as subjects of international

law. They have rights and duties under international law, such as the right to life, the
right to freedom from torture, and the right to an education.

 Non-state actors: Non-state actors are entities that are not states or international
organizations. They can include multinational corporations, non-governmental
organizations, and insurgent groups. Non-state actors can play an important role in
international affairs, and they are increasingly being recognized as having rights and
duties under international law.