Legal Methods Assignment.docx

JAMIA MILIA ISLAMIA

LEGAL METHODS ASSIGNMENT INTERNATIONAL AND MUNICIPAL LAWS

ABHINAV PANDEY

11/15/2017

SUBMITTED TO –

Prof. SUKESH MISHRA

Table of contents

 ACKNOWLEDGMENT  INTRODUCTION  HISTORICAL DEVELOPMENT  DIFFERENTIATED  SOURCES O INTERNATIONAL LAW  MUNICIPAL LAWS  REFERENCES

ACKNOWLEDGEMENT I would wish to express my special thanks of gratitude to my teacher Mr. SUKESH MISHRA who gave me the golden opportunity to do this wonderful project on the topic INTERNATIONAL & MUNICIPAL LAW, which helped me in doing a Research over an interesting topic, I came to know about so many new things and went through many useful facts. I am really thankful to him.

INTRODUCTION

International law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term was coined by the English philosopher Jeremy Bentham (1748–1832). The Nature And Development Of International Law Definition and scope According to Bentham’s classic definition, international law is a collection of rules governing relations between states. It is a mark of how far international law has evolved that this original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international law. Furthermore, it is no longer accurate to view international law as simply a collection of rules; rather, it is a rapidly developing complex of rules and influential—though not directly binding—principles, practices, and assertions coupled with increasingly sophisticated structures and processes. In its broadest sense, international law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to international actors—i.e., primarily sovereign states but also increasingly international organizations and some individuals. The range of subjects and actors directly concerned with international law has widened considerably, moving beyond the classical questions of war, peace, and diplomacy to include human rights, economic and trade issues, space law, and international organizations. Although international law is a legal order and not an ethical one, it has been influenced significantly by ethical principles and concerns, particularly in the sphere of human rights.

International law is distinct from international comity, which comprises legally nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of the flags of foreign warships at sea). International law is an independent system of law existing outside the legal orders of particular states. It differs from domestic legal systems in a number of respects. For example, although the United Nations (UN) General Assembly, which consists of representatives of some 190 countries, has the outward appearances of a legislature, it has no power to issue binding laws. Rather, its resolutions serve only as recommendations—except in specific cases and for certain purposes within the UN system, such as determining the UN budget, admitting new members of the UN, and, with the involvement of the Security Council, electing new judges to the International Court of Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction in international law. The ICJ’s jurisdiction in contentious cases is founded upon the consent of the particular states involved. There is no international police force or comprehensive system of law enforcement, and there also is no supreme executive authority. The UN Security Council may authorize the use of force to compel states to comply with its decisions, but only in specific and limited circumstances; essentially, there must be a prior act of aggression or the threat of such an act. Moreover, any such enforcement action can be vetoed by any of the council’s five permanent members (China, France, Russia, the United Kingdom, and the United States). Because there is no standing UN military, the forces involved must be assembled from member states on an ad hoc basis. The rules of international law are rarely enforced by military means or even by the use of economic sanctions. Instead, the system is sustained by reciprocity or a sense of enlightened self -interest. States that breach international rules suffer a decline in credibility that may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its advantage may induce other states to breach other treaties and

thereby cause harm to the original violator. Furthermore, it is generally realized that consistent rule violations would jeopardize the value that the system brings to the community of states, international organizations, and other actors. This value consists in the certainty, predictability, and sense of common purpose in international affairs that derives from the existence of a set of rules accepted by all international actors. International law also provides a framework and a set of procedures for international interaction, as well as a common set of concepts for understanding it.

HISTORICAL DEVELOPMENT International law reflects the establishment and subsequent modification of a world system founded almost exclusively on the notion that independent sovereign states are the only relevant actors in the international system. The essential structure of international law was mapped out during the European Renaissance, though its origins lay deep in history and can be traced to cooperative agreements between peoples in the ancient Middle East. Among the earliest of these agreements were a treaty between the rulers of Lagash and Umma (in the area of Mesopotamia) in approximately 2100 bc and an agreement between the Egyptian pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 BC. A number of pacts were subsequently negotiated by various Middle Eastern empires. The long and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also vital in the development of international law. In addition, basic notions of governance, of political relations, and of the interaction of independent units provided by ancient Greek political philosophy and the relations between the Greek city-states constituted important sources for the evolution of the international legal system.

Many of the concepts that today underpin the international legal order were established during the Roman Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the Romans to govern the status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In the Middle Ages, the concept of natural law, infused with religious principles through the writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas(1224/25–1274), became the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural law that applied to the relations between sovereign states. After the collapse of the western Roman Empire in the 5th century c, Europe suffered from frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a number of supranational sets of rules were developed to govern interstate relations, including canon law, the law merchant (which governed trade), and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island off the west coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of the printing press spurred the development of scientific, humanistic, and individualist thought, while the expansion of ocean navigation by European explorers spread European norms throughout the world and broadened the intellectual and geographic horizons of western Europe. The subsequent consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a set of rules to regulate their relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the person of the king and was later transformed into a principle of collective sovereignty as the divine right of kings

gave way constitutionally to parliamentary or representative forms of government. Sovereignty also acquired an external meaning, referring to independence within a system of competing nation-states. . In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular school of thought in international law, published De jure belli libri tres (1598; Three Books on the Law of War), which contained a comprehensive discussion of the laws of war and treaties. Gentili’s work initiated a transformation of the law of nature from a theological concept to a concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the development of the field to an extent unequaled by any other theorist, though his reputation as the father of international law has perhaps been exaggerated. Grotius excised theology from international law and organized it into a comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained acceptance among the northern European powers that were embarking upon extensive missions of exploration and colonization around the world. The scholars who followed Grotius can be grouped into two schools, the naturalists and the positivists. The former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the law of nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands, emphasized the actual practice of contemporary states over concepts derived from biblical sources, Greek thought, or Roman law. These new writings also focused greater attention on the law of peace and the conduct of interstate relations than on the law of war, as the focus of international law shifted away from the conditions necessary to justify the resort to force in order to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and commercial treaties. The positivist school made use of the

new scientific method and was in that respect consistent with the empiricist and inductive approach to philosophy that was then gaining acceptance in Europe. Elements of both positivism and natural law appear in the works of the German philosopher Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to develop an approach that avoided the extremes of each school. Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and non intervention in the affairs of other states—ideas that had been spread throughout the world by the European imperial powers. In the 20th century, however, positivism’s dominance in international law was undermined by the impact of two world wars, the resulting growth of international organizations—e.g., the League of Nations, founded in 1919, and the UN, founded in 1945—and the increasing importance of human rights. Having become geographically international through the colonial expansion of the European powers, international law became truly international in the first decades after World War II, when decolonization resulted in the establishment of scores of newly independent states. The varying political and economic interests and needs of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of international law with new influences The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased political cooperation between the United States and Russia and their allies across the Northern Hemisphere, but tensions also increased between states of the north and those of the south, especially on issues such as trade, human rights, and the law of the sea. Technology and globalization—the rapidly escalating growth in the international movement in goods, services, currency, information, and persons—also became significant forces, spurring international cooperation and somewhat reducing the

ideological barriers that divided the world, though globalization also led to increasing trade tensions between allies such as the United States and the European Union (EU). Since the 1980s, globalization has increased the number and sphere of influence of international and regional organizations and required the expansion of international law to cover the rights and obligations of these actors. Because of its complexity and the sheer number of actors it affects, new international law is now frequently created through processes that require near-universal consensus. In the area of the environment, for example, bilateral negotiations have been supplemented—and in some cases replaced—by multilateral ones, transmuting the process of individual state consent into community acceptance. Various environmental agreements and the Law of the Sea treaty (1982) have been negotiated through this consensus-building process. International law as a system is complex. Although in principle it is “horizontal,” in the sense of being founded upon the concept of the equality of states—one of the basic principles of international law—in reality some states continue to be more important than others in creating and maintaining international law.

DIFFERENTIATED In principle, international law operates only at the international level and not within domestic legal systems—a perspective consistent with positivism, which recognizes international law and municipal law as distinct and independent systems. Conversely, advocates of natural law maintain that municipal and international law form a single legal system, an approach sometimes referred to as monism. Such a system, according to monists, may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law.

A principle recognized both in international case law (e.g., the Alabama claimscase between the United States and the United Kingdom following the American Civil War) and in treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law of Treaties) is that no municipal rule may be relied upon as a justification for violating international law. The position of international law within municipal law is more complex and depends upon a country’s domestic legislation. In particular, treaties must be distinguished from customary international law. Treaties are written agreements that are signed and ratified by the parties and binding on them. Customary international law consists of those rules that have arisen as a consequence of practices engaged in by states. . In Sei Fujii v. State of California (1952), for example, the California Supreme Court held that the UN Charter was not self-executing because its relevant principles concerning human rights lacked the mandatory quality and certainty required to create justiciable rights for private persons upon its ratification; since then the ruling has been consistently applied by other courts in the United States. In contrast, customary international law was interpreted as part of federal law in the Paquette Habanacase (1900), in which the U.S. Supreme Court ruled that international law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing vessels it had seized. Domestic legislation is supreme in the United States even if it breaches international law, though the government may be held liable for such a breach at the international level. In order to mitigate such a possibility, there is a presumption that the U.S. Congress will not legislate contrary to the country’s international obligations. The United Kingdom takes an in corporationist view, holding that customary international law forms part of the common law. British law, however, views treaties as purely executive, rather than legislative, acts. Thus, a treaty becomes part of domestic law only if relevant legislation is adopted. The same principle applies in other countries where the English common law has been accepted (e.g., the majority of Commonwealth states and Israel).

Although the incorporationist view regards customary law as part of the law of the land and presumes that municipal laws should not be inconsistent with international law, municipal laws take precedence over international law in cases of conflict. Those common-law countries that have adopted a written constitution generally have taken slightly different positions on the incorporation of international law into municipal law. Ireland’s constitution, for example, states that the country will not be bound by any treaty involving public funds without the consent of the national legislature, and in Cyprus treaties concluded in accordance with its constitution have a status superior to municipal law on the condition of reciprocity. Sources of International Law The International Court of Justice (ICJ) was established in 1945 as the successor to the Permanent International Court o fJustice (PICJ), which was created in 1920 under the supervision of the League of Nations (the precursor to the UnitedNations). The PICJ ceased to function during World WarII and was officially dissolved in 1946. The ICJ is a permanentinternational court locate d in the Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). Itconsists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN SecurityCouncil and must receive an absolute majority from both in order to take office. The ICJ has jurisdiction only over states that have consented to it. It follows that the court can not hear a dispute between twoor more state parties when one of the parties has not accepted i ts jurisdiction. This can happen even where the nonconsenting party adheres to the court's statute, for mere adherence to the statute does not impl y consent to its tribunals. Inaddition, the court does not have jurisdiction over disputes betwee

n individuals or entities that are not states (I.C.J. Stat. art.34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1)). Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis ininternational custom, international conventions or treaties, an d general principles of law. A rule must derive from one of thesethree sources in order to be c onsidered international law. Custom Customary international law is defined as a general Practice of Law under article 38(1)(b). States follow such apractice out of a sense of legal obligation. Ru les or principles must be accepted by the states as legally binding in order to beconsidered rul es of international law. Thus, the mere fact that a custom is widely followed does not make it a rule ofinternational law. States also must view it as obligatory to follow the custom, and the y must not believe that they are free todepart from it whenever they choose, or to observe it o nly as a matter of courtesy or moral obligation. This requirement isreferred to as opinio juris. MUNICIPAL LAWS The term “municipal law” is used in two different ways. In one sense, municipal law is simply any law which applies internally within a nation, in contrast with international law. The Constitution of Australia, for example, would be classified as municipal law because it is concerned with the internal governance of Australia. On the other hand, the Convention on the Rights of the Child is part of international law. In another sense, the term is used specifically to describe the body of law utilized within a given municipality. The distinction between municipal and international law in the first sense is important. As a general rule, international law is deemed as binding and it will take precedent unless a nation can demonstrate that an aspect of a treaty or similar agreement runs contrary to one of its

fundamental values. For example, in the unlikely event that an international law banning women from voting was passed, undoubtedly a number of nations would refuse to comply with it under the argument that it would undermine the value of equality which is enshrined in their cultural and legal precedents. By definition, a municipality is “a political unit, such as a city, town, or village, incorporated (by the state) for local self-government or a body of officials appointed to manage the affairs of a local political unit.” According to Vermont law, “municipality” includes a city, town, town school district, incorporated school or fire district or incorporated village and all other governmental incorporated units.” 1 V.S.A. § 126. Most Vermont towns received their municipal incorporation (their land grant charter) from King George in the 1700s. Villages, counties, fire districts, solid waste districts, insect control districts, incorporated school districts, and other non-chartered municipalities are entities that were created (incorporated) by legislative act or by a process established by statute. Although most of Vermont municipal law refers to towns, Vermont statutes provide that “the laws applicable to the inhabitants and officers of towns shall be applicable to the inhabitants and similar officers of all municipal corporations.” 1 V.S.A. § 139. This means that a statute that grants a particular authority to the selectboard will grant similar powers to the governing board of another kind of municipality, unless a more specific law applies to the particular municipal corporation. Not every entity in our towns is a municipal corporation. For example, volunteer fire departments and incorporated public libraries are nonprofit corporations. Even though they receive public funds to operate they are not municipalities and the general rules that apply to municipalities, such as the open meeting law and the public records act, will not generally apply to them

Theories as to Relationship Between International Law and Municipal Law Dualism and Monism: Dualists see International Law and Municipal Law as unmistakable and separate – emerging from various sources, administering distinctive zones and connections, and distinctive in substance. As indicated by Dualists, universal law is sub-par compared to and weaker than, household law. On the off chance that universal law ever turns out to be a piece of household law,that must be on account of household law, has fused it. Monists then again fight that there is just a single arrangement of law, of which worldwide and household laws are close to two perspectives. They legitimize this by asserting that them two administer sets of people (States being seen for this as 202 accumulation of people) both are official, and both are indications of a solitary idea of law. Subsequently global law is unrivaled and more grounded, as it speaks to the framework's most noteworthy tenets – purview on a local level being just designated to states, which can't abstain from will undoubtedly apply global law at the residential level. Thus, if local law anyplace clashes with universal law that is the State's blame, and won't pardon the State's obligations.Seen on the universal plane, the question between these two schools of thought is without a doubt scholarly. "Formally global and local law as frameworks can never collide. What may happen is something entirely extraordinary, in particular a strife of commitments or a powerlessness for a state on the residential plane to act in the way required by universal law". It is very much settled that universal law will apply to a state paying little heed to its local law and that a state can not in the global gathering argue its own household law, or even its local constitution, as a reason for ruptures of its global obligations.

Seen on the local plane, be that as it may, the debate isn't just a scholarly one, for the two schools of thought prompt altogether different outcomes. Regardless of whether worldwide law shapes some portion of household law is an inquiry, which practically speaking, is

chosen either by the Constitution or a Statute or by the local Courts of each State. Monists say that it will dependably shape such a section; dualists, that it will frame part just if the local law has explicitly as impliedly joined it. Truth be told, numerous States explicitly acknowledge worldwide law as a feature of their residential law, clearing out academicians to face off regarding whether the acknowledgment was vital or pointless. However others do not Where international law becomes incorporated in a State’s domestic law without the need for specific legislation, those parts of it, which are sufficiently explicit to be enforceable by the domestic courts, are known as ‘self executing’.4 Some States provide by their Constitutions that certain provisions of international law shall be self-executing. For example, the Constitution of the U.S.A., provides that international treaties are part of the law of the land.5 Other countries have gone even further by not only making international law self executing, but assigning to it a rank in the domestic hierarchy superior to all prior and subsequent legislation. Examples of this are France and Germany.6 But there are other States that do not accept any international law as self-executing, or so accept it in part. For example United Kingdom (U.K.). Where International Law and Domestic Law coincide, there is of course no problem. But if they differ – either because international law imposes an obligation on a State which is not reflected in its domestic law, or because obligations imposed by international law and domestic law respectively conflict with each other in a particular case – a domestic court will generally have to apply the following rules.7 (1) Where the domestic legal system is founded on a dualists view, and the obligation under international law has not become selfexecuting under a standing provision of the domestic law or been expressly re-enacted in that law, the court must follow the domestic law and ignore the international law. (In U.K. where the legal system is entirely dualist and there are no provision for self-execution), U. K. courts are not entitled to take into account provision of international treaties if the legislature has not expressly enabled them as part of domestic law though U.K. is bound by treaty provision. (2)

In any other case, the court must have regard both to international law and to domestic law. If there proves to be a conflict between them, the court must follow any rules of domestic law that prescribe which of them is to prevail.8 (3) If there are no such rules, it will probably be because the domestic legal system is founded on the monistic view, and so international law will prevail.9 Unfortunately, however, existing legal theories concerning such application of international rights tend to belittle both the judicial agency and the desirability of judicial participation in implementing even relatively uncontroversial international rights at domestic levels. The existing pattern of marginalization of domestic enforcement of International Human Rights Law is deeply rooted in a naïve exploration of the theory of relationship between domestic law and international law. The monists theory rightly contemplates International Law and Domestic Law as just two manifestations of one singular concept, “Law”. As such the judiciary in a monist country is ideally in a position to directly apply international human rights norms. By contrast, unincorporated international human rights treaties are considered as only having ‘persuasive’ and not ‘binding’ authority for judiciaries of dualist tradition, although as regards customary international law most dualist court follow, if more theoretically than practically, a notionally monist tradition of recognizing customary international human rights as directly applicable part of national laws.10 The traditional divide between ‘binding’ and ‘persuasive authority’ of international human rights norms simply holds the possibility that a judge may if he/she so wishes, draw on those norms to inform his/her decisional reasoning. The approach does not focus on the obligations that a state assumes by becoming a party to an international convention, or under higher, general international principle; nor does it articulate to refer, at the minimum, to those international legal sources of state obligations. In short the existing dualist model, in its uncritical applied mood, addresses the issues of rights implementation rather inadequately and tends to weaken both the normative and ethical regime of international human rights law as a whole.11 Thus,

the dualist model seems to epitomize the limits of legal positivism. But, if one concedes to the view that, apart from state obligations, there are also values and ethical force in international human rights, one would be able to pursue a more effective approach to the dualism. Mayo Moran aptly questioned the dominance of the “world of legal judgment” by the traditional “binding sources” model of international rules.12 While supporting the persuasive stance regarding non-binding international law, they critique that the courts current approach does not properly distinguish between ‘binding’ and ‘persuasive’ authorities of international rights law and urge for judicial obligations to interpret binding international law (e.g. customary) more actively. Moran describes the approach of courts in this regard (treating International Law as persuasive) as one of ‘Judicial quasi-obligation’. It appears that dualist model courts treat International Human Rights Law as not ‘rights generating’ but only helps in articulating rights based on domestic regime of law. Such an approach is suicidal one considering the legal foundation upon which International Human Rights Law exists.

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https://www.britannica.com

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http://shodhganga.inflibnet.ac.in

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https://www.academia.edu

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