PIL - Sakshi Dhaddha

SOURCES OF INTERNATIONAL LAW

 Where does international law come from and how is it made ?

 There is no “Code of International Law”. International law has no Parliament and nothing that can really
be described as legislation.
 While there is an International Court of Justice and a range of specialized international courts and
tribunals, their jurisdiction is critically dependent upon the consent of States and they lack what can
properly be described as a compulsory jurisdiction of the kind possessed by national courts.
 According to Lawrence and Oppenheim: There is only one source of international law – consent of
nation.
 Brierly – Customs and reasons are the main source of international law.
 Article 38 (1) of the ICJ’s statute identifies three sources of international law: treaties, custom, and
general principles.

ARTICLE 38 (1) OF THE ICJ STATUTE

i. Treaties between States;

ii. Customary international law
iii. General principles of law recognized by civilized nations;
iv. Judicial decisions and academic writings

 Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a casecex aequo et bono, if the parties
agree thereto.

TREATIES

 Treaties (sometimes called Agreements, Conventions, protocols, International Agreements, Pacts,

General Acts, Charters, Statutes and Covenants)
 Treaties are transactions or written agreements whereby the states participating bind themselves
legally to act in a particular way or to set up particular relations between themselves
 Deliberate methods of creating law : A treaty does not create either obligations or rights for a
third State without its consent
 Based of the principle of pacta sunt servanda
 Example: the Charter of the United Nations, Vienna Convention on Diplomatic Relations,
Convention on the Rights of Persons with Disabilities etc.
 Types:
i. Law Making Treaties,
ii. Treaty Contracts

CUSTOMARY INTERNATIONAL LAW (CIL)

 Customary law is not a written source.

 Customary international law refers to international obligations arising from established international
practices, as opposed to obligations arising from formal written conventions and treaties. Customary
 international law results from a general and consistent practice of states that they follow from a sense
of legal obligation.
 Ex., requiring States to grant immunity to a visiting Head of State, principle of non-refoulement etc.
 What are the methodologies for identifying the rules of customary international law?
 Two-Element Approach - ICJ held in the Libya/Malta Continental Shelf case, the substance of
customary law must be ‘looked for primarily in the actual practice and opinio juris of states’.

STATE PRACTICE

Material Fact or Actual Practice :

 Duration: Unlike domestic law, duration is not important of the components of state practice. It
depends on the circumstances of the case and the nature of the usage in question. In certain fields,
such as air and space law, the rules have developed quickly; in others, the process is much slower.
 Uniformity, Continuity and Consistence of Practice :
 The ICJ in Asylum case, declared that a customary rule must be in accordance with a constant and
uniform usage practiced by the States in question.
 The ICJ emphasized its view that some degree of uniformity amongst state practices was essential
before a custom could come into existence in the Anglo-Norwegian Fisheries case.
 ICJ in North Sea Continental Shelf cases the ICJ remarked that state practice, ‘including that of
states whose interests are specially affected’, had to be ‘both extensive and virtually uniform in the
sense of the provision invoked’.
 Nicaragua v. United States - that it was not necessary that the practice in question had to be ‘in
absolutely rigorous conformity’ with the purported customary rule.

OPINIO JURIS

 Opinio juris sive necessitatis,” which means "an opinion of law or necessity” – psychological
element.
 Opinio juris denotes a subjective obligation, in that a state perceives itself to be bound by the law in
question.
 Opinio juris can be inferred by the context and manner in which states comply with customary
international law.
 North Sea Continental Shelf cases. The Court noted that:
“for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but
they must be accompanied by the opinion juris sive necessitatis. Either the States taking such action or other
States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e.
the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates”
 ICJ in a number of cases utilized General Assembly resolutions, Conventions, declaration as
confirming the existence of the opinio juris, focusing on the content of the resolution and the
conditions of their adoption.

QUESTIONS TO CONSIDER

 Can a Treaty provision crystalize into CIL?

If the treaty provision is of a fundamentally norm-creating character and generalizable then the treaty
provisions with passage of time may of themselves, be regarded as customary rules without the requirement
to demonstrate the opinio juris. Ex. The Human Rights Treaties.
 When a treaty reflect a norm of customary international law then does it create an obligation on the
non-party state?
ICJ in the North Sea Continental Shelf Cases
“treaty provisions may lead to custom providing other states, parties and non-parties to the treaty fulfil the
necessary conditions of compatible behavior and opinio juris “
 Where a treaty rule comes into being covering the same ground as a customary rule, will the latter be
absorbed within the former?
ICJ in Nicaragua case did not accept the argument of the US that the norms of customary international law
concerned with self-defense had been ‘subsumed’ and ‘supervened’ by article 51 of the United Nations
Charter. CIL continues to exist and to apply separately from international treaty law, even where the two
categories of law have an identical content’

ERGA OMNES OBLIGATION AND JUS COGENS

 Question of hierarchy- Treaty Law and CIL

 A special rule prevails over a general rule (lex specialis derogat legi generali)
 Not if the general rule in question creates an erga onmes obligation or is a jus cogens
 Erga omnes obligation – Obligation towards all
 ICJ in the Barcelona Traction case [(Belgium v Spain) “… an essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those arising
vis-à-vis another State in the field of diplomatic protection.
 Examples of such obligations included the outlawing of aggression and of genocide and the
protection from slavery and racial discrimination.
 Genocide Convention (Bosnia v. Serbia) case that ‘the rights and obligations enshrined in the
Convention are rights and obligations erga omnes.

PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW (JUS COGENS)

 Jus cogens (or ius cogens) is a latin phrase that literally means “compelling law.”
 It designates norms from which no derogation is permitted by way of particular agreements.
 Art 53 of VCLT:
“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law. For the purposes of the present Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international law
having the same character. “
 Art 64 of VCLT”
“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict
with that norm becomes void and terminates. “
 Various examples of rules of jus cogens have been provided, particularly during the discussions on
the topic in the International Law Commission, such as an unlawful use of force, genocide, slave
trading and piracy etc.

GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILIZED NATIONS

 General principles of law are used primarily as "gap fillers“ to prevent a non liquet when treaties or
customary international law do not provide a rule of decision. International tribunals rely on these
principles when they cannot find authority in other sources of international law.
 Examples of these general principles of law are laches, good faith, res judicata, and the impartiality
of judges.
 In Chorz´ow Factory case, the Permanent Court of International Justice declared that ‘it is a general
conception of law that every violation of an engagement involves an obligation to make reparation’.
 The International Court of Justice in the Corfu Channel case, when referring to circumstantial
evidence, pointed out that ‘this indirect evidence is admitted in all systems of law and its use is
recognized by international decisions’.
 In the Genocide Convention case (Bosnia and Herzegovina v. Serbia and Montenegro) the principle
of res judicata was recognized.
 Gabcıkovo–Nagymaros Project (Hungary v Slovakia) case- ex injuria jus non oritur.
 Rann of Kutch Arbitration between India and Pakistan – Equity

JUDICIAL DECISIONS
  There is no rule of stare decisis in international law.
 Court often refers to its past decisions and advisory opinions to support its explanation of a present
case.
 One example of this is part of the decision in the Lotus case, which was criticized and later
abandoned in the Geneva Conventions on the Law of the Sea.
 One of the most outstanding instances of this occurred in the Anglo-Norwegian Fisheries case, with
its statement of the criteria for the recognition of baselines from which to measure the territorial sea,
which was later enshrined in the 1958 Geneva Convention on the Territorial Sea and Contiguous
Zone

JURISTIC WRITINGS

 'Teachings of the most highly qualified publicists of the various nations' are also among the
'subsidiary means for the determination of the rules of law’.
 Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were the supreme authorities of
the sixteenth to eighteenth centuries and determined the scope, form and content of international law.
 With the rise of positivism and the consequent emphasis upon state sovereignty, treaties and custom
assumed the dominant position in the exposition of the rules of the international system, and the
importance of legalistic writings began to decline.

OTHER SOURCES

 In the post Second World War period the question of validity of the resolutions and declarations of
the General Assembly and Security Council of the United Nations as a source of international law
has emerged time and again.
 UN Security Council, has the competence to adopt resolutions under articles 24 and 25 of the UN
Charter binding on all member states of the organization.
 Resolutions of the Assembly are generally not legally binding and are merely recommendatory- Soft
Law
 The ICJ in the Nicaragua case expressed the view that the opinio juris requirement could be derived
from the circumstances surrounding the adoption and application of a General Assembly resolutions.
The effect of consent to resolutions such as this one ‘may be understood as acceptance of the validity
of the rule or set of rules declared by the resolution by themselves.
 The ICJ in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion obdereved that
General Assembly resolutions, even if they are not binding, may sometimes have normative value
 For example, the 1960 Declaration on the Granting of Independence to Colonial Countries and
Peoples, which was adopted with no opposition and only nine abstentions and followed a series of
resolutions in general and specific terms attacking colonialism and calling for the self-determination
of the remaining colonies, has marked the transformation of the concept of self-determination from a
political and moral principle to a legal right and consequent obligation, particularly taken in
concurrence with the 1970 Declaration on Principles of International Law.

THE INTERNATIONAL LAW COMMISSION

 The International Law Commission was established by the General Assembly in 1947 with the
declared object of promoting the progressive development of international law and its codification.
 Many of the most important international conventions like the international conventions on the Law
of the Sea, convention on Diplomatic Relations, have grown out of the Commission’s work.
 ILC will prepares a draft convention which submitted to the various states for their comments and is
usually followed by an international conference convened by the United Nations which eventually
emerges as treaty.
 The drafts of the ILC are often referred to in the judgments of the International Court of Justice

UNILATERAL ACTS
  In certain situations, the unilateral acts of states, including statements made by relevant state
officials, may give rise to international legal obligations.
 Such unilateral acts include recognition and protests, which are intended to have legal consequences.
 Unilateral acts, while not sources of international law as understood in article 38(1) of the Statute of
the ICJ.
 Such unilateral statements may be used as evidence of a particular view taken by the state in
question.

THEORIES OF INTERNATIONAL LAW

INTERNATIONAL LAW TODAY

 Multidimensional development in the field of international law

 The Eurocentric character of international law has been gravely weakened in the last sixty years or so
and the opinions, hopes and needs of other cultures and civilizations are now playing an increasing
role in the evolution of world juridical thought.
 With the interplay of global forces it is important that international law is flexible enough to permit
changes
 International law, however, has not just expanded horizontally to embrace the new states which have
been established since the end of the Second World War; it has extended itself to include individuals,
groups and international organizations, both private and public, within its scope.

NATURAL LAW THEORY

 Most of the jurists of 16th and 17th century were of the view that the basis of any law is law of
nature and international law being part of law has the same basis and for the same reason is binding
on the states.
 Natural Law- Ideal Law
 Normative in nature which differentiated right and wrong behavior of human.
 According to this approach, states, as members of universal community, are obliged in order to
conserve peace and security to act always in accordance with the principle that the common good of
mankind is paramount to their individual interest.
 Thus, international law was considered to be binding in nature by this school of thought because its
basis was natural law.

POSITIVE LAW THEORY

 This school of thought was in vogue in the 19th century and was of the view that people would be
bound to obey law if it was created by appropriate legislative authority or sovereign irrespective of
its being reasonable or unreasonable.
 Morality, ethics, Reason, Natural Law was rejected because they were vague and unscientific
 According to them, law must be analyzed empirically, irrespective of its ethical elements, i.e., law
must be studied as it exists and law is the command of the sovereign having sanction.
 Hart says that the rules of international law do not as yet constitute a ‘system’ but are merely a ‘set of
rules’.
 This approach to law in society reached its height with Kelsen’s ‘Pure Theory of Law’
 For Kelsen international law is a primitive legal order because of its lack of strong legislative,
judicial and enforcement organs and its consequent resemblance to a pre-state society

ACCORDING TO KELSEN

 International Law is valid if:

  The principles of international law can be traced back to the basic norm of the system, which
is hierarchical in the same sense as a national legal system.
 Norms created by international treaties and conventions
 Rules established by organs which have been set up by international treaties, for instance,
decisions of the International Court of Justice
Kelsen’s Monoism

NATURAL LAW AND POSITIVE LAW DEBATE

 The discussion of Natural Law increased and gained in importance following the Nazi experience. It
stimulated a German philosopher, Radbruch, to formulate a theory whereby unjust laws had to be
opposed by virtue of a higher, Natural Law.
 Many of the ideas and principles of international law today are rooted in the notion of Natural Law
and the relevance of ethical standards to the legal order, such as the principles of non-aggression and
human rights.

REALIST THEORY

 According to Realist legal scholars, states adopt only international legal norms that either enhance
their power, formalize the subordination of weaker states, or that they intend to violate deliberately to
their own advantage.
 International Law may thus address only peripheral matters that do not impact the states' power or
autonomy.
 Realists believe that international politics in modern times generally recognizes no authority above
the nation-state.
 Agreements among states are enforceable only by the agreeing states themselves.
 Reciprocity serves as the main tool to enforce agreements in international politics.
 Enforcement of an agreement is devolved to the parties themselves. Damaged parties have the option
to respond with retaliatory sanctions to a violation of an agreement thereby enhancing
the deterrent and coercive effects of a stable balance of power
 The threat of reciprocal sanctions may be sufficient to deter violations, and so agreements can be
enforced in international politics.

THIRD WORLD APPROACHES TO INTERNATIONAL LAW (TWAIL)

 Perceives international law as facilitating the continuing exploitation of the Third World through
subordination to the West.
 International law was created during the colonial era and that it was used to legitimize the global
processes of marginalization and domination of the colonized people by Western powers.
 TWAIL scholars seek to change what they identify as international law's oppressive aspects, through
the re-examination of the colonial foundations of international law.
 They refuse to accept the universal character of the international legal system as it emerged solely
from the European.
 International law tries to put a limitation of the Third World states’ sovereignty through transferring
their autonomous powers to international institutions controlled by the First World. Ex. Humanitarian
Intervention.
 Indian Scholars : R.P.Anand, Upendra Baxi, B.S.Chimni

FEMINIST THEORY OF INTERNATIONAL LAW

 Assumes the use of feminist theory as a basis for critical analysis, that is to show how the structures,
processes, and methodologies of international law marginalize women by failing to take account of
their lives or experiences
  A feminist approach takes as its central concern the position of women and denotes a form of
analysis. It takes gender as its primary organizing category, places women at the center of inquiry,
and works for an end to the oppression of and discrimination against women.

 Women’s campaigning for the international legal system to address structural inequality in global
political, social and economic systems and to take account of particular concerns, for example
modern forms of slavery, human trafficking, gender-based crimes, and the nationality of married
women.
 The emergence of a global women’s movement gained impetus from the International Women’s Year
proclaimed by the United Nations (UN) in 1975 and subsequently extended to the International
Decade for Women, 1975–85.

MAJOR ISSUES IN INTERNATIONAL LAW FROM A FEMINIST PERSPECTIVE

Lack of representation of women interests - World and international politics are controlled by men. Very
little scope of representation of women interests like domestic violence, lack of political participation.
Reforms – CEDAW
Lack of women decision makers - No Women SG of the UN, Very less number of women judges in the ICJ
(4 out of 15)
Human rights violation different for both men and women. State-building, or post-conflict reconstruction are
all experienced differently by women and men. However, it is the male experiences and male knowledge
that are privileged and have shaped the framework for traditional legal inquiry and analysis. These are made
to appear objective, natural, and universal in contrast to women’s experiences that appear as exceptional,
deviant, and the other. Example GBV, genital mutilation, rape, trafficking, wartime rape.

LIBERAL THEORY OF INTERNATIONAL LAW

 Contemporary liberal theory is grounded on the assumptions that people are morally equal and that
each individual should be free to pursue his or her own conception of the good life, constrained by
the requirement that one’s actions not cause harm to others.
 The subject of international law is state – very little opportunity for individuals to be part of the
global order through international law. Liberalism counters this place of international law by putting
the individuals at the center point of international law.

MAIN FEATURES OF LIBERAL THEORY

Main features of liberal theory of international law

1. “Bottom –up” focus on the demands of individuals and social groups, and their relative power in
society, as fundamental forces driving state policy. For liberals, every state is embedded in an
interdependent domestic and transnational society that decisively shapes the basic purposes or
interests that underlie its policies, its interaction with other states, and, ultimately, international
conflict and order.
2. Rejection of power politics as the only possible outcome of international relations; it questions
security/warfare principles of realism
3. Mutual benefits and international cooperation
4. The role of international organizations and nongovernmental actors in shaping state preferences and
policy choices
5. Liberals assume that states are embedded in a transnational society comprised of individuals, social
groups, and substate officials with varying assets, ideals and influence on state policy.
6. The first stage in a liberal explanation of politics is to identify and explain explain the preferences of
relevant social and substate actors as a function of a structure of underlying social identities and
interests. They treat globalization, as transnational interdependence, material or ideational, among
social actors.
 7. Such interdependence creates varying incentives for cross-border political regulation and interaction.
State policy can facilitate, block, or channel globalization, thereby benefitting or harming the
interests or ideals of particular social actors.

MARXIST COMMUNIST THEORY

 Classic Marxist theory described law and politics as the means whereby the ruling classes maintained
their domination of society.
 Classical International Law founded on the idea of Nation State and National states were dominated
by the capitalist class and would have to disappear in the re-organizing process.
 Professor Tunkin emphasized on new series of international legal ideas:
a. principles of socialist internationalism in relations between socialist states,
b. principles of equality and self-determination of nations and peoples, primarily aimed against
colonialism, and
c. principles of peaceful coexistence aimed at relations between states with different social
systems.

 Professor Tunkin defined international law as :

“the aggregate of norms which are created by agreement between states of different social systems, reflect
the concordant wills of states and have a generally democratic character, regulate relations between them in
the process of struggle and co-operation in the direction of ensuring peace and peaceful co-existence and
freedom and independence of peoples, and are secured when necessary by coercion effectuated by states
individually or collectively.”

International and Municipal Law

Introduction
Nothing is more essential in International law than having a comprehensive understanding of its relationship
with the Municipal law of a State.
This article will be talking only about the theoretical aspect of International law on Municipal law however,
there are two governing principles of International law relating to the Municipal application of treaties, and
they are:

Article 27 of the Vienna Convention on the Law of Treaties:

Prohibits the states from invoking its Municipal law as its justification for non obligation towards the
performance of treaty.

Article 8 of the Universal Declaration of Human Rights and Fundamental Freedoms:

Every individual is vested with the right to an effective remedy by the tribunal which is competent to hear,
for violations of fundamental rights granted by the constitution or by any other law.
The significance of the theoretical aspect of this topic can never be overrated as the question regarding the
consideration of limits between International law and a state’s Municipal law is usually argued among those
who practice International law. Apart from the theoretical aspect of the relation between International law
and Municipal law there exist a practical problem in a State’s Municipal courts that, as to what extent the
Municipal courts of a country give effect within its jurisdiction to the rules and principles of International
law, both where the rules and principles are in conflict with Municipal law and not in conflict with
Municipal law.

Theories on the relationship between International law and Municipal law

The two principal theories of the relationship between International law and Municipal law are known as
Monism and dualism. As per the beliefs of Monism, International law and state’s Municipal law are two
components but complementary aspects of one single system. According to dualism, they are entirely
distinct and different legal systems on their own. International law has an intrinsically different character
from that of the state law, because in International law a large number of the State’s legal system are
involved, the dualist theory is sometimes known as the pluralistic theory.
To know the relationship between International law and Municipal law, it is crucial to understand what these
two laws actually are. The rules and regulations which deals with the conduct of states is known as
International law. In order to simplify we can say, set of principles which the states can invoke or apply
while dealing with other states or international organizations. On similar grounds, it is also called as “the law
of the nations”. On the other hand, The Municipal law is known as the internal law of the land.
Monistic theory
International law operates only at the International level and the Municipal law operates only on its local
jurisdictional limits. However, the advocates of natural law believe that Municipal and International law
form a single legal system, this approach is commonly known as Monism.

To have a better understanding of this topic it is crucial to understand what natural law is; natural law is
something that exists in isolation with the positive law. As the name suggests, it is determined by nature, the
law of nature is objective and universal in nature. From the time of inception, natural law is referred to
analyze human nature to deduce moral behaviour from nature.

The argument from the side of a Monist is pretty simple, they believe Municipal law and International law if
looked together is nothing but a single system. Modern writers who favor the monistic approach endeavors
that a major portion of their views are based on a strictly scientific analysis of the Municipal structure of
legal systems.

In a true monist country, there is no need for the translation of International law into Municipal law. Once
the state gives assent to the treaty, it automatically gets incorporated in its municipal law. This act of giving
assent to an International treaty or obligation will immediately incorporate international principles into
states’s Municipal law, (this is inclusive of customary International law).

International law can be applied by a Municipal Court, and can be invoked by citizens, contingent on the
fact that the international law is translated into the state’s Municipal law. A municipal court can declare a
law as unconstitutional if it contradicts International principles.

In a true monist state, if a national law contradicts International law then it becomes null and void, no matter
whether it is of constitutional nature or not. For example, a state gives assent to the Convention on the
Rights of Persons with Disabilities, however, a few of its national laws are in contradiction with the
conventions rights of the individuals who suffer from a disability. Then, a citizen of that country, who is not
getting deprived of the rights conferred by the treaty, can ask the national courts to apply the treaty.

In a Monist State, the International law gets automatically accepted and the contradicting part automatically
gets translated away the moment the State ratifies the treaty.

Kelsen: Grundnorm theory

For Kelsen, International and Municipal law is nothing but “manifestations of a single unit of law”. Kelsen’s
belief in the supremacy of International law is the result of his “basic norm”, which states that: ‘states should
behave as they customarily have behaved’.

International law is supreme in nature as it represents a legal order which is higher than Municipal laws, it is
because the International law is derived from the state’s practice on the other hand the Municipal law gains
its power from the state’s internal affairs.

Once it is accepted that International law is a system of rules of a legal character, it becomes impossible
according to kelson to deny that the two systems constitute as a single system.

The theory of International law and Monism doesn’t have any halfway house. Kelson observed natural law
and International law as a single and coherent system. According to him, International law is placed at the
top of the pyramid (as per his grundnorm hypothesis).
Dualist theory
Unlike Monists, dualists have stressed on the difference between International law and Municipal law and
have argued for the adoption of International treaties in the Municipal law of the State. According to
dualists, in absence of this adoption by the State the International law will not exist as a law.

The reason why dualists have this view is because they believe International law and Municipal law are two
different aspects of law and it would be unreasonable to take the two as a unity. As per their belief,
International law and Municipal law are two distinct and independent systems in itself.

In a dualist State, it is of utmost importance that International law has to be drafted in its Municipal law in
order to give it an effect. Apart from drafting it is the duty of the state to omit those laws which contradicts
the newly adopted International law.

If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty,
then their act of non incorporation violates the International law. If the State has not incorporated the
principles of a treaty as per its local laws which it has ratified earlier in the International sphere then, neither
the citizens of that country can invoke the International laws nor the courts can give its decisions based on
the principles of that treaty.

The United Kingdom is a country in which a dualist approach is dominant. International law becomes the
national law in the UK only if it is translated.

Hersch Lauterpacht on Dualism

Judge Lauterpatch was an advocate of natural law, he accepted that International law observes the precepts
of natural law.

For Lauterpacht, International law is more superior than municipal law, the rationale behind this view is
because it offers the guarantee rights for the individuals notwithstanding anything from which state he
belongs to. As per Lauterpacht the hierarchy of legal orders was:
1. Natural law
2. International law
3. Municipal law

For him whether it is International law or Municipal law, it is the individual who is the definitive unit of all
law. He answered a few fundamental questions of international law philosophy regarding the concept and
origin of international law.

He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal obligation, meanwhile
agreeing with Kelsen that the binding force of law cannot be derived from the individual or common will of
the states.

For Lauterpacht, the international law is for the states and not for governments. For him, the international
community was a community of individuals, whose will is expressed by the states.

Triepel on dualism
Triepel treated the two systems of State law and International law as entirely distinct in nature. For him the
International and Municipal law exist as two separated, distinct sets.

Triepel made following contentions on the relationship between International law and state law:
 Firstly he contended that, International law and Municipal law differ in the particular social relations
that they govern; State law deals with the individuals and International law regulates the relations
between States.
 Secondly, he argues that their juridical origins are different; the source of Municipal law is the will of
the State itself, the source of International law is the common will of States.
  There exist differences in: subjects, sources and content, also, it requires ‘transformation’ of
International law into Municipal law to make International law binding on Municipal authorities.

Triepel accepted that the basic will of the States was the premise of the legitimacy of International law; he
also pointed out that it is heavily relied upon the agreements between States, which not only includes treaties
but custom too and the common will was the most important and inventive source of International law.

The problem of “lex posterior”

In a dualist country, International law must be translated into Municipal law, and the existing Municipal law
which contradicts International law must be “translated away”. The international law must be translated into
municipal law in order to conform to International law. However, the need for translation causes a problem
with regard to Municipal laws which are developed after translation.

In a monist country, a law emerges after the International law has been accepted and if it contradicts the
International law, it automatically becomes null and void. The International rule will continue to prevail.
In a dualist system, when the international law which is translated into a national law can be overridden by
another national law on the principle of “lex posterior derogat legi priori“, which means: the later law
replaces the earlier one.

This means that a dualist state willingly or unwillingly can violate international law. A dualist system
requires continuous screening of all subsequent national law for possible incompatibility with earlier
international law.

Difference Monism theory and Dualist theory

Monism
1. As per the advocates of natural law, Municipal law and International Law forms a single legal
system.
2. Monism is supported by the advocates of natural law.
3. In Monism there exists no need for translation of International into Municipal law in order to give it
an effect.
4. In a true monisitc country if a national law contradicts International Law then it becomes null and
void.
5. If a monist state ratifies a treaty or a convention, and does not create a law explicitly incorporating
the treaty then their act of non incorporation will not violate the International Law.
6. In a monistic State International Law automatically gets embedded in the Municipal law and the
contradicting part gets automatically translated away.
7. Supporters of Monism: kelson.
8. State which follows Monistic approach: germany.

Dualism
1. Municipal law and International Law are two different and distinct legal systems.
2. It is supported by the advocates of positive law.
3. In a dualist country there exists a need for translation of International into Municipal law in order to
give it an effect.
4. In a true dualistic country, if a national law contradicts International law then it becomes doesn’t
becomes null and void, unless it is already translated in its municipal law
5. If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating
the treaty, then their act of non incorporation violates the International law.
6. International law does not get automatically embedded in the Municipal law.
7. Contradicting parts of the Municipal law has to be amended by the state, as it does not get
automatically translated away in a dualist country.
8. In the absence of translation of International law into Municipal law the International law will not
exist as a law.
9. Supporter: hersch lauterpatch, triepel.
10. Country which follows: United kingdom.
Judicial Discourse on Relationship Between International Law and Municipal Law

State of West Bengal v Kesoram Industries Ltd. & others

In this case, the Constitutional Bench of Supreme Court held that the Doctrine of Dualism is applicable in
India and not the doctrine of Monism however if the municipal law isn’t limiting the extent of the statute,
then, even if India is not a signatory to the treaty, the Supreme Court can Interpreted the Statute.

Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others
The High Court of Karnataka while deciding this case, defined the relationship between International Law
and the Municipal Law held that, as the increasing relevance of International law on the global and
municipal scenario, several unique and novel queries are starting to be raised regarding the relationship
between the two. However the Hon’ble High Court held that Municipal Law & International Law are
established on different sources can make different systems go simply incompatible.

Conclusion
Monism and dualism are usually conceived as two opposing theories of the International law and Municipal
law relationship. Monism and dualism are regarded by many modern scholars as having limited explanatory
power as theories as they fail to capture how International law works within States.
Notwithstanding anything, Monism and dualism hold power as analytical tools. They go about as predictable
beginning stages for examinations of the connection among International and Municipal law. Various late
choices in Municipal courts have seen a few researchers find Monism and dualism as potential approaches to
comprehend Municipal legal thinking on International law.

Law of the Sea

Introduction
Law of the sea is also known as Maritime law which is that branch of public International Law which
regulates the rights and duties concerning the regulation of states with respect to the sea. It governs the legal
rules regarding ships and shipping. It is one of the principal subjects of international law and is a mixture of
the treaty and established or emerging customary law.
The law of the sea forms the basis of conducting maritime economic activities, the codification of navigation
rules and to protect oceans from abuse of power. It covers rights, freedoms and obligations in areas such as
territorial seas and waters and the high seas, fishing, wrecks and cultural heritage, protection of the marine
environment and dispute settlement.

The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of maritime law which
is one of the recently developed branches of International Law. During the 17th century, the doctrine of
“freedom-of-the-seas” emerged wherein it was considered that the seas were free to all nations but belonged
to none of them. The Law of the sea has always been in a state of flux, changing and creating a new regime
as per the state’s own will.
There existed certain tension between “the free sea” and “the closed sea” which waned for centuries,
generally with the powerful states arguing that the sea was free to all, and the smaller States arguing for
transnational limitations on what maritime powers could do to navigate the oceans and exploit their
resources.
It was during the 20th century due to vast development in the technology and the commerce department,
many nations began to make jurisdictional claims so that they could protect their interest and the gradual
enlargement of territorial sea initiated the need for the codification of the law to create uniformity.
Over a series of discussions and conferences, four conventions on the law of seas evolved in 1958, namely
called Geneva convention on the law of sea developed but the conventions failed to address several issues
like the urgent need to regulate the usage of minerals of the deep sea beds and high sea.
In 1982, the third UN conference adopted the Convention on the Law of the Sea (UNCLOS) consisting of
320 articles and 9 Annexes, along with 4 resolution. A significant portion of the convention was a replica of
the old Geneva convention however several new factors were also dictated which are as follows:
 It expanded the scope regarding the matters of the new legal regime of the deep sea bed and
economic zones.
 The territorial sea now extended up to 12 nautical miles limit.
 In cases of dispute, the convention provides compulsory judicial settlement at the request of one of
the parties.
 The convention also describes the formation of an international tribunal of the law of the sea for
helping in settlements of disputes.
 The convention also deals with the regime of archipelagic states, the waters between the islands are
declared archipelagic waters, where ships of all States enjoy the right of innocent passage.

Major Maritime zones along with the rights and duties provided under the specific zones

Territorial seas

It is that part of the sea which is directly next to the coastline and bounded by the high seas. Article 2 of the
Geneva Convention on the Territorial Sea and UNCLOS Article 3 both express that states exercise
sovereignty over this zone subject to the provisions of the respective conventions and other rules of
international law. This was intended to highlight that the limitations upon sovereignty in this area set out in
the Convention are non-exhaustive. The territorial sea forms an undeniable part of the land territory to which
it is bound so that a cession of land will automatically include any band of territorial waters.
According to UNCLOS, it is believed that every coastal state has Territorial sea. The sovereignty of the
coastal state extends to the seabed and subsoil of the territorial sea and the airspace above it. The coastal
States exercise a wide variety of exclusive power over the territorial sea which depends largely on the
municipal law rather the international system. Coastal states can control the entry of foreign vessels from
trading or fishing activities to preserve it for their own citizens.

a. Width of the Territorial sea

Width of the territorial sea up to which the states can exercise sovereignty has been subjected to a long line
of historical development. Initially, it started with the “cannon-shot” rule wherein it stated that width
requirement in terms of the range of shore-based artillery, however during the 19th century it changed to 3-
mile rule by the Scandinavians claimed 4 miles.
The limit to exercise jurisdiction over the territorial sea became clear only after the first world war, Article
3 of the 1982 Convention, however, notes that all states have the right to establish the breadth of the
territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This is clearly in line with
state practice. For determining the measurement of this range two methods have been laid down which are
as follows:

Low water line

It was the Anglo Norwegian Fisheries case which propounded the principle regarding the determination of
the baseline w.r.t geographical realities. In this case, the method applied by the Norwegians affected the
fishing interest of UK because the straight baseline method applied then created a chance to cover those
parts of the sea which belonged to High sea zone.
The court upheld the straight baseline method applied by Norway due to the peculiar nature of its coastline.
The method that determines the rule regarding the 12 Nautical miles limit depends mainly on the nature of
the state’s geographic position, normally Low water line is preferred however in cases of countries like
Norway straight baseline method can be applied.

b. The Right of Innocent Passage

The right of foreign merchant ships (as distinct from warships) to pass unhindered through the territorial sea
of coast has long been an accepted principle in customary international law, the sovereignty of the coast state
notwithstanding.
UNCLOS in its Article 19 provides for an exhaustive list of activities for which the passage is considered as
innocent, the main factor to keep in mind is peace, good order, or security of the coastal State. Article
24 prohibits coastal States from hampering the innocent passage of foreign ships through the territorial sea
unless specifically authorized by other Articles of the LOSC.
Discrimination among other states or cargoes is prohibited for the Coastal States, however, when it is found
to be that any foreign Ship has committed any violation of the aforesaid rule of the convention, the coastal
states have the power to forbid entry of such ship or take any measures as they deem necessary for their
security.
Other aspects of the territorial sea are:
 Internal water
As per Article 8 of UNCLOS, internal waters include that part of the sea which does not belong to either the
high seas or the territorial rather covers all the waterways on the landward side of the baseline. One of the
major differences between the Territorial sea and the internal water is that there exists no right of innocent
passage in case of the former.
 Bays
Bays are one of the major complex issues under maritime laws, it may enclose a line which leaves internal
waters on its landward side and provides a baseline for delimiting the territorial sea.
 Islands
The 1958 convention defines Islands consist of a naturally formed area of land, surrounded by water, which
is above water at high tide. These islands are capable of forming continental shelf zone, Exclusive Economic
zone, Contiguous zone, territorial sea zone however if there is no habitat capable of surviving on an island it
may not form EEZ. Where there exists a chain of islands which are less than 24 miles apart, a continuous
band of the territorial sea may be generated.
 Archipelagic states: Group of Islands
The states having above such characteristics has sovereignty over the waters enclosed by the baselines
subject to limitations created by the provisions of this Part of the convention. These limitations consist of the
right of innocent passage for ships of all states, and, unless the archipelagic state designates sea lanes and air
routes, the right of archipelagic sea lanes passage through the routes normally used for international
navigation.

Contiguous zone
It is that part of the sea which is located beyond and adjacent to the territorial waters of the coastal states.
The development of this zone arose due to the need of the state to strengthen its regulation over the
territorial sea.
It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for certain purposes
as provided in the article 24 of the convention like to prevent infringement of customs, immigration or
sanitary laws of the coastal state, or to conserve fishing stocks in a particular area, or to enable the coastal
state to have exclusive or principal rights to the resources of the proclaimed zone. The formation of this zone
is only for special purposes as prescribed in the convention, it does not provide any air and space rights to
the states.

 Beyond territorial seas, a coastal state can exercise its jurisdiction for certain defined purposes only
up to 24 nautical miles from the baseline.
 The purposes are:
 To prevent infringement of customs;
 Immigration;
 Sanitary laws of the coastal state;
 Conserve fishing stocks;
 Coastal state to have principal rights to the resources of that zone
 It enables the coastal state to protect its important interests while striking a balance with other
nations and their claim to the high seas.
 While territorial sea gives direct and full jurisdiction to the coastal state, it is considered equal to the
land territory, contiguous zones have to be specifically claimed. (1958 Convention)
  Customs as a purpose for claiming jurisdiction for contiguous zones is part of customary
international law. For eg. Much before the conventions came USA and UK had enacted laws
extending beyond their territorial waters to prevent smuggling.

Exclusive Economic Zone (EEZ)

The object for this zone arose due to controversy regarding fishing zones. Due to a lack of regulation of limit
regarding fishing zone, states began to claim the wide depth of region under this zone. In the case of Tunisia
vs Libya, the court regarded that the concept of Exclusive Economic Zone can be associated as a part of
Customary International Law. Article 55 of the UNCLOS describes the extension of this region from the
baseline is up to 200 nautical miles from the breadth of the territorial sea.
In the case of Coastal states as per article 56 of the convention, these states have sovereign rights over the
Exclusive Economic Zone for the purpose like:
1. Exploiting and exploring, conserving and managing natural resources
2. For the establishment of an artificial island, Marine Scientific research
iii. Other rights as specified in part IV of the convention.
In case of other states, it provides rights and duties of that which can be compared to the high seas such as
freedom of navigation, laying of pipelines and submarine cables, they have to keep in mind the rights and
duties of Coastal states during the exercise of their own power.

 Sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural
resources either living or non living-water, currents and wind for energy.
 Use of artificial installations, structures, protection and preserving maritime environment and
maritime scientific research.
 Starts from the outer limit of territorial sea but not beyond 200 nautical miles from baseline.

Continental Shelf
This zone arose due to the concept of Geography wherein as per 1982 convention, it includes a natural
seaward extension of a land boundary. This seaward extension is geologically formed as the seabed slopes
away from the coast, typically consisting of a gradual slope (the continental shelf proper), followed by a
steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. The limit
up to which its length extends up to 200 nautical miles.
These three areas, collectively known as the continental margin, are rich in natural resources, including oil,
natural gas and certain minerals.
The coastal states exercise an extensive sovereign-rights over this zone for the purpose of exploiting its
resources. The coastal state may, under article 80 of the 1982 Convention, construct and maintain
installations and other devices necessary for exploration on the continental shelf and is entitled to establish
safety zones around such installations to a limit of 500 metres, which must be respected by ships of all
nationalities.
EEZ and Continental shelf is almost similar in nature however the major point of difference between the two
is that under the 1982 convention a continental shelf can exist without an EEZ but there cannot be an EEZ
without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of legal custom
that has led to the need for the evolution of this concept. In the case of Nicaragua vs Honduras, the
international court has dictated on the importance of the establishment of a maritime boundary.
The concept of the median line has been used to determine the delimitation of the territorial sea within the
opposite and the adjacent coast. Initially, the issue was taken up in the North Sea Continental Shelf cases,
wherein the Court took the view that delimitation was based upon consideration and weighing of relevant
factors in order to produce an equitable result.
Later, in the case of Libya Vs Malta, the Court emphasised the close relationship between continental shelf
and economic zone delimitations and held that the appropriate methodology was first to provisionally draw
an equidistant line and then to consider whether circumstances existed which must lead to an adjustment of
that line.
  Geological expression of the ledges that project from the landmass into the seas.
 Continental shelves are rich in oil, gas resources and fishing.
 Where the continental shelf extends beyond 200 miles, its limit shall not exceed 350 miles from the
baseline or 100 miles from the 2500 meters isobar.

- North Sea Continental Shelf Case

 North Sea Continental Shelf Cases, [1969] I.C.J. 13 (Germany/Denmark; Germany/ Netherlands)
 Facts:
 The coasts of Germany, Denmark and the Netherlands are adjacent to the North Sea. By previous
agreements, areas of the North Sea continental shelf had been divided between Great Britain and
Denmark/Germany/Netherlands and between Norway and Denmark. These agreements divided the
shelf among states with opposite seacoasts by the equidistance principle, that is, by a line all points
of which were equally distant from the opposing state coasts.
An equidistance line drawn between opposite states is termed a median line; if drawn between adjacent
states, it is a lateral line. The dispute before the Court in North Sea was whether lateral lines should divide
the area of continental shelf left to Denmark, Germany and the Netherlands by the previous agreements with
Norway and Great Britain.

Denmark and the Netherlands wanted a continued use of the equidistance principle. Germany did not agree.
The German coastline curves inward in a concave manner, so that an equidistance extension of the partial
boundaries would result in lateral lines curving inward as well. Germany would thereby receive a smaller
portion of the North Sea continental shelf than if the partial boundaries were extended by a different
principle. The dispute, then, was whether the partial boundaries should be extended by use of the
equidistance principle or by some other principle and if so, what that other principle should be.

Germany did not regard the equidistance principle as binding for several reasons: (1) Germany is not a party
to the Continental Shelf Convention because it has not ratified its signature thereto; (2) Germany's past
conduct and reliance upon other principles of the Convention constitute neither an accession nor an estoppel
to deny the application of the Convention's principles; (3) the equidistance principle is not a rule of
customary international law. Rather, Germany thought that each state should be allocated a "just and
equitable share" of the available continental shelf in proportion to the length of its coastline.

Judgment :
Germany was not bound by the Convention on the Continental Shelf.
The principle of equidistance was not a customary international law and therefore Germany was not bound
to follow that principle either.
The Court thought equidistance more appropriate for opposite than adjacent states. In the case of adjacent
states, the Court found the use of lateral lines more appropriate for delimitation of territorial seas than of
continental shelf.

The Court then set forth those principles of international law which were binding upon Germany-
Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all
the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the
continental shelf that constitute a natural prolongation of its land territory into and under the sea, without
encroachment on the natural prolongation of the land territory of the other;

Delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed
proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or
exploitation for the zones of overlap or any part of them;
In the course of the negotiations, the factors to be taken into account are to include:
The general configuration of the coasts of the Parties, as well as the presence of any special or unusual
features;
So far as known or readily ascertainable, the physical and geological structure, and natural resources, of the
continental shelf areas involved;

The element of a reasonable degree of proportionality, which a delimitation carried out in accordance with
equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the
coastal state and the length of its coast measured in the general direction of the coastline, account being
taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations
between adjacent states in the same region.

Rights And Duties Of The State

 For the purposes of exploring and exploiting natural resources coastal state exercises sovereign right.
No other state can undertake such activities in that region without the express consent of the coastal
state.
 These rights do not affect the superjacent waters as the high seas.
 Exploration and exploitation of the resources must not result in unjustifiable interference with
navigation, fishing or conservation of living resources in the high seas.
 Coastal states may construct or maintain installations or do as need be for purposes of exploitation
and can create safety zones which must be respected by all states. Such installations shall not create
rights of an island for the coastal state.

Conclusion
Law of the sea is concerned with public order at sea which has been codified in the form of United Nations
Convention on the Law of the Sea and signed on December 10, 1982. It provides rules and regulations that
helps to maintain peace and security over the usage of the sea.
The code provides a set of comprehensive rules which divides the oceanic region into 5 maritime zones and
it has set the limit to 12 nautical miles for the coastal states to exercise their sovereignty without any
conflict. It aims to resolve the dispute amicably with the help of international tribunal for the law of the sea.

United Nation Convention on the Law of the Sea (UNCLOS)

Although UNCLOS I was deemed a success, it left unresolved the critical issue of the territorial sea’s
breadth. It was because all of the States could not agree on a single territorial sea limit. In order to resolve
this issue, a second conference on the Law of the Sea was conducted in 1960 (UNCLOS II), which
introduced no significant changes. It became clear that the Geneva conference’s laws were inadequate in
light of the undiscovered large quantities of minerals, oil, and gas resources in the sea, as well as the
increasing efficiency and capacity of some states to exploit them.
The Geneva Conventions are primarily historical in nature, as they are an expression of “traditional law of
the sea,” that is, the law that prevailed prior to the changes in the international community and its assessment
and evaluation on the uses of the seas that resulted in the Third UN Conference on the Law of the Sea.
In 1967, Maltese delegate to the United Nations, Arvid Pardo, stepped up urging U.N. members to utilize
their combined influence to reach an agreement on the equitable and responsible use of the world’s oceans.
He presented a survey of the seabed’s mineral resources before the United Nations General Assembly’s First
Committee. His survey revealed in great detail the abundance of minerals such as iron, manganese, titanium,
copper, and so on that exist in vast amounts beneath the ocean. He also declared that the ocean floor and the
seabed should be treated as the “common heritage of mankind”. Furthermore, thanks to tremendous
advancements in technology and science, it was possible to investigate, explore and exploit these minerals to
a large extent. This investigation of the seabed’s mineral resources, undertaken by Arvid Pardo, and the
acute and urgent demand for minerals, as well as other considerations such as military and strategic issues,
made it necessary to enact legislation that could potentially manage and regulate the sea in a more effective
manner.
After a nine-year conference that resulted in the UN Convention on the Law of the Sea, it took 15 years for
an agreement to be reached. The conference, which drew more than 160 countries, lasted until 1982. The
resulting convention went into effect on November 16, 1994. It superseded the four Geneva Conventions of
April 1958, which dealt with the territorial sea and contiguous zone, fisheries, the high seas, the continental
shelf, and the conservation of living resources on the high seas, resulting in the establishment of three new
institutions. The three newly formed institutions retained various parts and ideas of the previous four
conventions. The institutions are, namely –
1. the International Tribunal for the Law of the Sea,
2. the International Seabed Authority, and
3. the Commission on the Limits of the Continental Shelf.
According to Article 311, paragraph 1, the UN Convention on the Law of the Sea of 1982 supersedes the
Geneva Conventions on the Law of the Sea of 29 April 1958 as between States Parties. The majority of the
Geneva Conventions’ signatories are among the 155 countries that signed the 1982 Convention. The latter
Conventions bind only the few States that are parties to the applicable Geneva Convention but not to the
1982 Convention, or in their connections with them. In the examples of the United States, Colombia, Israel,
and Venezuela, this is especially true.