This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the link between international law and national law.
Table of Contents
Introduction
International laws are considered superior to national laws. This seems quite obvious as the States apply international rules to prepare their national laws. But, the relationship between the two is still complicated and not yet clear.
An overview of International Law
International law refers to the general set of rules or principles that help in resolving international problems like laws of the sea, the dispute between two countries, the part of the land that belongs to which country, how to maintain international behaviour, etc. However, the point to be noted here is that international laws are a standard system of rules which apply to all countries. So, it depends on each country how to apply these rules and pass the law for their land.
Components of International Law
The entities which have an obligation towards the international law are:
The States
The international legal system is dominated by the States. The States inculcate the international legal rules and enforce them as laws of their land. It is the States who can become members of the International Court of Justice and other organizations. The States have to constantly evolve. To maintain international relations, States must be recognized by the other States. With the emergence of newly recognized States, the balance of power can be changed and international relations can run smoothly.
International organizations
International organizations are established by the States to maintain a balance in international relations. For example, the United Nations was a combined effort of the States to maintain peace after World War II. Each international organization has different obligations and duties set by international law. One of the main organs of the United Nations, the International Court of Justice has the power to challenge the decisions of the States in the context of international laws.
Role of the individuals
Individuals play a very important role in the formation of the international legal system. The legal rules mentioned in the international law do not include the individuals but, indirectly the obligations mentioned for the States apply to the individuals because, if an individual is happy then, the State flourishes. Individuals are linked to each State by their nationality. Nationality is acquired by birth, acquisition, naturalization, etc. Each state has different criteria for acquiring nationality.
Sources of International Law
Article 38(1) of the Statute of the International Court of Justice has mentioned a few sources of international law, which are as follows:
Treaties
Rules given by international law are mainly in the form of treaties. Treaties are given various other names like conventions, agreements, rules, etc. Treaties were the only source of hope in times of war. Although, some treaties have also ignited wars, for example, the Treaty of Versailles. Post the war phase, the Vienna Convention on the Law of Treaties (1969) was set up. This Convention is also known as the law of treaties. It contains everything about how treaties should be formed. The important point of notice here is that all treaties are binding only on the States and not any third party.
Customs
Customs are followed by two nations while maintaining international relations with each other. Custom is a practice that is accepted as a law by the States over a period of time. Customary law rules are binding in all States. The States are generally the main contributors in establishing a new custom. For example, in the Cold War era, the United States and the Soviet Union came up with new customs regarding Space laws. The ICJ also refers to a lot of customs while delivering judgments.
The International Law Commission
The United Nations International Law Commission was established in 1948. The ILC has thirty-four members. The main function of the ILC is to codify international laws. The International Law Commission prepares draft articles for the international laws over a period of time and then submits the draft to the United Nations General Assembly for a draft convention.
General principles of law
General principles are recognized by many nations, so they are an important source of International law. Not all disputes between nations are resolved by treaties. General principles are used when there is no provision for treaties. General principles can be seen in all legal systems. Examples of these general principles are good faith, the impartiality of judges, laches, etc.
The link between National and International Law
As mentioned above, the individual actors have no legal obligations under the international law, however, it is individuals who have mentioned certain theories which stand out as the distinctive feature when talking about national and international laws. The two very important ones are referred to as dualism and monism.
Dualism
Under a dualistic tradition, the national legal system is considered completely different from the international legal system. In this context, the international rules will be valid only in the international legal circuit and not in the domestic legal order. According to this theory, international law applies to laws between the states and national law applies to laws within each state.
Monism
The monism theory of international law is exactly the opposite of the dualistic theory. This theory states that international and national laws should be combined into one legal order. On this basis, there will be a balance between both national and international laws. The main exponents of this theory were Hans Kelsen and Hersch Lauterpacht.
Hersch Lauterpacht’s views on monism
Lauterpacht observed that it is the individuals that drive international laws. The States exist on their own. International law is the best source of justice for individuals and human affairs.
Hans Kelsen’s views on monism
According to Kelsen, monism is established in international law and national law is part of the same legal order. Kelsen formulates that the States should behave according to the customs. Thus, Kelsen developed a monistic theory of the relationship between national and international law.
Consent theory
The key exponents of the consent theory were Triepel and Anzilotti. According to the consent theory, the will of the State is binding on international law. It is the will of the State that rules the international and national laws.
Dionisio Anzilotti and Heinrich Triepel’s views
Dionisio Anzilotti an Italian jurist observed that the maxim ‘pacta sund servanda’, which means agreements between States should be respected, is the binding force behind international law. He further states that the treaties and customary rules are all based on the consent of the States. Similarly, Heinrich Triepel also stated that the common will of the States and the agreement between the States was the basis of international law.
The major defect in the consent theory is the fact that there has to be the consent of the States for the international laws to function. Further, treaties and customs are not the only sources of international law. Article 38(1) of the Statute of the International Court of Justice, proves this fact. Despite the criticisms, consent theory has influenced international laws.
Case laws
Lagrand case (2001)
- Two Lagrand brothers were involved in a bank robbery in Arizona USA and killed a man during the robbery. Both the brothers were from Germany and were in the United States without US citizenship. They were charged for murder and were awarded the death penalty. They were not provided with consular assistance under the Vienna Convention and were both hanged to death.
- Germany filed a suit against the United States in the ICJ stating that the United States did not give the brothers their rights under the Vienna Convention. Now, Article 36(1)(b) of the Vienna Convention on Consular Relations, 1963 states that the foreigners involved in a death penalty case have a right to get consular assistance. Before the case went to the ICJ, the Germans were hanged to death.
- The court observed that the United States had breached its obligations given under the Vienna Convention. The court further held that the United States had violated individual rights given to the foreigners under the Vienna Convention.
Anglo-Norwegian fisheries case (1951)
- In 1911, a few British boats were seized by the Norwegian Authorities for crossing the boundaries within which fishing for foreigners was prohibited. The United Kingdom filed a suit against the Norwegian Government for this incident. The Norway Government had passed an order in 1935 regarding the delimitation of the Norwegian fisheries zone in which the boundaries for fishing were drawn.
- The United Kingdom claimed damages as compensation by the Norwegian authorities and also the validity of the fisheries lines. The ICJ mainly relied on the Maritime laws and held that the line drawn by the Norwegian Government for the delimitation of the fisheries zone was not contrary to the international law. Hence, the case went in favour of Norway.
Bosnian genocide case (1996)
- When Yugoslavia broke up in the 1990s, Bosnia and Herzegovina declared independence. In the events following this, Serbia and Montenegro declared themselves the Federal Republic of Yugoslavia. The Serbian forces attacked the Bosnian Muslim population killing around eight thousand people during the armed conflicts going on in Bosnia and Herzegovina.
- The Bosnian Government filed a suit against the Federal Republic of Yugoslavia in the International Court of Justice claiming that the Serbian forces had violated the Prevention and Punishment of the Crime of Genocide Convention and that the Federal Republic of Yugoslavia was responsible for this act.
- The ICJ held that an act done by a State organ will be considered as an act by the State. This rule was stated in Article 4 of the International Law Commission Articles of State Responsibility.
Corfu Channel case (1949)
- During the Greece Civil War, in an encounter between Albania and the United Kingdom, two British warships which were passing through the Corfu Channel were fired at by the Albanian forces. The Albanian Government took a stand by stating that no foreign ships can pass through Albanian waters without prior permission. The United Kingdom contended that the ships can pass through any strait or channel for international navigation purposes. The Albanian Government claimed that the Corfu Channel is not a part of the international highways through which ships have a right of passage.
- The dispute went to the International Court of Justice. The court held that the Corfu Channel is a part of the international highways hence, a right of passage cannot be prohibited in times of peace by a coastal State. Hence the judgment went in favour of the United Kingdom.
Kulbhushan Jadhav case (2019)
In recent times, another case in which the ICJ has stepped in is the Kulbhushan Jadhav case (2019). In this case, an Indian Navy officer Kulbhushan Jadhav was arrested in Pakistan on the grounds of spying and terrorism and was sentenced to death. India approached the ICJ for denial for consular assistance to Mr. Jadhav by Pakistan. The ICJ held that Pakistan should grant consular access to Mr. Jadhav under Article 36 of the Vienna Convention on Consular Relations. This case, however, is still pending in the ICJ.
Conclusion
The relationship between the international laws and the national laws has not been a point of debate or dispute between any country. Both the laws are operating in their own jurisdictions without any disturbance. The international laws help in maintaining international relations whereas the national laws help in the sovereignty and development of the nation-states. Many people believe that international laws are superior to national laws but such a debate should only start if there is a conflict between the two. Otherwise, both the laws are equally important.
References
- https://lawexplores.com/the-relations-of-international-and-national-law/
- https://academic.oup.com/icon/article/9/1/274/902275#15620928
- https://www.researchgate.net/publication/31139434_The_Kosovo_Case_and_International_Law_Looking_for_Applicable_Theories
- https://www.ilsa.org/Jessup/Jessup%20Competitor%20Resources/intlawintro.pdf
- https://heinonline.org/HOL/LandingPage?handle=hein.journals/intlfddb3&div=12&id=&page=
- https://www.spacelegalissues.com/the-conditions-for-speaking-of-a-state-in-public-international-law/
- https://www.icj-cij.org/en/statute
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