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 non-

consenting 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 self-

executing 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.academia.edu

 https://link.springer.com

 http://racolblegal.com