SUBJECTS OF INTERNATIONAL LAW

Introduction
In Public International Law, "subjects" refer to entities that possess rights and obligations
under the international legal system and can participate in international relations.
Traditionally, states were considered the primary subjects of international law. However,
other entities such as international organisations, individuals, non-state actors, and new actors
have emerged as important participants in the international legal system. This essay explores
these subjects, providing examples and case laws to illustrate their roles and contributions to
the development of international law.
States as Subjects of International Law
States have traditionally been the primary and most important subjects of international law. A
state is defined by four criteria: a permanent population, a defined territory, a government,
and the capacity to enter into relations with other states. States are sovereign entities,
meaning they possess full legal capacity to engage in international relations, enter into
treaties, and claim rights and obligations under international law.
Example: The Montevideo Convention on the Rights and Duties of States (1933) codified the
criteria for statehood. According to this convention, entities that fulfil these criteria are
recognized as states and are entitled to the rights and responsibilities of statehood.
Case Law: The International Court of Justice (ICJ) Advisory Opinion on the Status of Kosovo
(2010) addressed the issue of statehood in the context of Kosovo's unilateral declaration of
independence. The ICJ concluded that Kosovo's declaration did not violate international law,
highlighting the complex nature of statehood and recognition in international law.
International Organizations as Subjects of International Law
International organizations are entities created by states through treaties to achieve common
goals and perform specific functions. These organizations have legal personality, meaning
they can enter into agreements, sue or be sued, and enjoy certain rights and obligations under
international law. However, their legal capacity is limited to the functions and powers
conferred upon them by their founding treaties.
Example: The United Nations (UN) is the most prominent international organization,
established in 1945 to promote peace, security, and cooperation among states. The UN has
legal personality and is capable of performing various functions, such as mediating conflicts,
imposing sanctions, and facilitating international cooperation.
Case Law: The Reparations for Injuries Suffered in the Service of the United Nations (1949)
case before the ICJ affirmed the legal personality of the UN. The ICJ ruled that the UN could
bring a claim for damages suffered by its agents, demonstrating that international
organizations can act as subjects of international law. Individuals as Subjects of International
Law Historically, individuals were not considered subjects of international law; only states
could assert rights and obligations on behalf of their citizens. However, this has changed over
time, particularly with the development of international human rights law and international
criminal law. Individuals now have rights and responsibilities under international law, and
they can be held accountable for violations of international norms.
Example: International human rights instruments, such as the Universal Declaration of
Human Rights (1948) and the International Covenant on Civil and Political Rights (1966),
recognize the rights of individuals under international law. Individuals can also be held
criminally responsible for serious international crimes, such as genocide, war crimes, and
crimes against humanity.
Case Law: The Nuremberg Trials (1945-1946) marked a significant development in
recognizing individuals as subjects of international law. Nazi leaders were prosecuted for war
crimes and crimes against humanity, establishing the precedent that individuals could be held
accountable under international law, regardless of their official capacity.
Non-State Actors as Subjects of International Law
Non-state actors, including multinational corporations (MNCs), non-governmental
organizations (NGOs), and armed groups, have increasingly become influential participants
in international law. Although they do not possess full legal personality like states or
international organizations, non-state actors can have rights and obligations under
international law, particularly in areas like human rights, environmental protection, and
international humanitarian law.
A. Multinational Corporations (MNCs)
Multinational corporations are powerful economic entities that operate across multiple
jurisdictions and significantly influence global trade, investment, and development.
Traditionally, MNCs were not considered subjects of international law because they lacked
sovereignty. However, their global reach and economic power have led to increasing
recognition of their role and responsibilities in the international legal order.
Example: MNCs are often involved in international disputes related to human rights,
environmental protection, and corporate social responsibility. The UN Guiding Principles on
Business and Human Rights (2011), also known as the "Ruggie Principles," outline the
responsibility of businesses to respect human rights and provide a framework for holding
corporations accountable for violations.
Case Law: The case of Kiobel v. Royal Dutch Petroleum Co. (2013) in the United States
Supreme Court illustrates the challenges of holding MNCs accountable under international
law. The plaintiffs, Nigerian nationals, alleged that Shell was complicit in human rights
abuses in Nigeria. While the court ultimately ruled against the plaintiffs, the case highlighted
the potential for MNCs to be considered subjects of international law, particularly in the
context of human rights violations.
B. Non-Governmental Organizations (NGOs)
Non-governmental organizations play a crucial role in international law by advocating for
human rights, environmental protection, and social justice. NGOs operate independently of
states and often influence international policymaking, standard-setting, and the enforcement
of international norms.
Example: NGOs like Amnesty International and Human Rights Watch are instrumental in
monitoring human rights violations and lobbying for the adoption and implementation of
international human rights standards. They participate in international forums, submit reports
to international bodies, and engage in public campaigns to hold states and other actors
accountable.
Case Law: In the Trail Smelter Arbitration (1938-1941), the International Joint Commission
(IJC) between the United States and Canada acknowledged the role of environmental NGOs
in raising awareness and providing expert evidence on transboundary pollution issues. This
case is often cited as a precursor to modern environmental law, where NGOs play a
significant role in influencing international legal outcomes.
C. Armed Groups
Armed groups, including insurgents, militias, and terrorist organizations, have increasingly
become subjects of international law due to their involvement in conflicts and their impact on
international peace and security. While these groups are not recognized as legitimate states,
international law has developed norms to address their actions, particularly in the context of
international humanitarian law (IHL).
Example: Armed groups operating in conflict zones are subject to the provisions of the
Geneva Conventions and their Additional Protocols, which set out the rules of war, including
the treatment of civilians and prisoners of war. These rules apply to both state and non-state
actors, including armed groups.
Case Law: The Prosecutor v. Tadić (1995) case before the International Criminal Tribunal for
the former Yugoslavia (ICTY) expanded the application of international humanitarian law to
non-state actors. The tribunal ruled that individuals and groups involved in non-international
armed conflicts could be held accountable for war crimes, marking a significant development
in the recognition of armed groups as subjects of international law.
New Actors as Subjects of International Law
The traditional subjects of international law have long been recognized as sovereign states
and, to a lesser extent, international organizations. However, the evolving landscape of global
governance has led to the emergence of new actors as significant participants in international
law. These new actors include non-state entities such as multinational corporations (MNCs),
non-governmental organizations (NGOs), armed groups, indigenous peoples, and even
individuals. Their growing influence and activities on the international stage have compelled
the international legal system to adapt and recognize their roles, rights, and obligations.
A. Indigenous Peoples
Indigenous peoples have long been marginalized in the international legal system, but recent
developments have increasingly recognized their rights and status as distinct subjects of
international law. This recognition has been driven by the need to protect their cultural
heritage, land rights, and self-determination.
Example: The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
(2007) is a landmark instrument that recognizes the rights of indigenous peoples, including
their rights to self-determination, cultural preservation, and land. UNDRIP has influenced the
development of national and international legal frameworks that protect indigenous rights.
Case Law: The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001)
before the Inter-American Court of Human Rights was a groundbreaking case that recognized
the land rights of indigenous peoples. The court ruled that Nicaragua had violated the rights
of the Awas Tingni community by granting logging concessions on their ancestral lands
without their consent, setting a precedent for indigenous land rights under international law.
[Link]
Individuals have traditionally been seen as objects, rather than subjects, of international law,
with their rights and obligations mediated through states. However, the development of
international human rights law and international criminal law has increasingly recognized
individuals as direct subjects of international law, capable of holding rights and facing
responsibilities.
Example: International human rights treaties, such as the International Covenant on Civil and
Political Rights (ICCPR), grant individuals’ specific rights under international law. Moreover,
international criminal tribunals have held individuals accountable for serious crimes, such as
genocide, war crimes, and crimes against humanity.
Case Law: The Nuremberg Trials (1945-1946) established a precedent for individual
responsibility under international law, holding Nazi leaders accountable for war crimes and
crimes against humanity. This principle has been further developed by international courts,
such as the International Criminal Tribunal for Rwanda (ICTR) and the International
Criminal Court (ICC).
C. Technology Companies
In the digital age, technology companies have emerged as influential actors in international
law, particularly in areas like data protection, cybersecurity, and freedom of expression.
These companies, while not sovereign entities, wield significant power over global
communications and data flows, leading to calls for greater regulation and accountability.
Example: The General Data Protection Regulation (GDPR) of the European Union imposes
strict data protection obligations on technology companies that operate in or process data
from the EU. This regulation has global implications, as companies outside the EU must also
comply with its provisions if they handle data of EU citizens.
Case Law: The Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos,
Mario Costeja González (2014) case in the Court of Justice of the European Union (CJEU)
established the "right to be forgotten," allowing individuals to request the removal of personal
data from search engines. This case highlighted the role of technology companies as actors in
international law, particularly concerning data protection and privacy rights.
Theoretical Framework:
Monism vs. Dualism
The relationship between international law and municipal law is often framed within the
debate between two main schools of thought: monism and dualism. These theories provide a
lens to understand how different legal systems approach the interaction between international
and domestic law.
MONISM
• Monism posits that international and domestic law form a single unified legal order. In a
monist system, international law is automatically incorporated into domestic law without the
need for specific domestic legislation. States that adopt a monist perspective usually give
international law a superior status over national law. there is no fundamental distinction
between international and domestic law; rather, both operate within a single legal framework
where international law automatically becomes part of municipal law upon ratification of an
international treaty or upon the emergence of customary international norms.
Theoretical Foundation
Monism is often associated with the philosophical perspectives of natural law, where all
legal norms are seen as part of a coherent system of justice. In this view, international law is
superior to municipal law because it represents the collective will and principles of the global
community. Under this theory, states are bound by international law directly, without the need
for any specific legislative action to incorporate these norms into domestic law.
[Link] in Practice- A notable example of a monist state is the Netherlands, where
international treaties and customary international law have a direct effect on the domestic
legal order without the need for implementing legislation. Article 93 of the Dutch
Constitution states that provisions of treaties and resolutions by international institutions are
binding on all persons after they have been published. Similarly, the case of Costa v. ENEL
(1964) in the European Court of Justice (ECJ) reflects a monist approach within the context
of European Union law. The ECJ held that EU law is supreme over national law, and member
states cannot invoke their domestic laws to override EU obligations. This decision effectively
integrates EU law into the legal systems of member states, overriding conflicting national
laws.
2. Criticism and Challenges -While monism offers a seamless integration of international
law into domestic legal systems, it faces criticism for undermining national sovereignty.
Critics argue that it places international law above domestic legislative processes, potentially
leading to conflicts with a state’s constitutional principles and the democratic process.
 • Dualism, on the other hand, treats international and domestic law as two distinct and
separate legal systems. For international law to have an effect in the domestic sphere, it must
be translated into domestic law through a specific legislative process. The UK, like many
common law countries, follows a dualistic approach. Instead, for international obligations to
have domestic legal effect, they must be formally incorporated through legislative or other
constitutional processes. This means that treaties, conventions, or international agreements do
not automatically become part of UK law; they must be enacted through an Act of
Parliament. The UK’s dualistic stance provides a foundational understanding of how the
nation navigates its international obligations and domestic legal order.
2. Theoretical Foundation
Dualism is rooted in the positivist tradition, which emphasizes the sovereignty of states and
the supremacy of national legal systems. Dualists argue that because international law and
municipal law are created by different entities (international law by the collective community
of states and municipal law by the state itself), they must be treated as separate legal systems.
According to this view, international law can only influence domestic law if it is explicitly
adopted by the domestic legislature.
3. Application in Practice The United Kingdom is a classic example of a dualist state. In the
UK, international treaties do not have domestic legal effect unless they are incorporated by an
Act of Parliament. For instance, the European Convention on Human Rights (ECHR) was
only given effect in UK law through the Human Rights Act 1998. Before this act, while the
UK was bound by the ECHR at the international level, individuals could not directly invoke
the Convention rights in domestic courts.
The case of R v. Secretary of State for the Home Department, ex parte Brind (1991)
illustrates the dualist approach. In this case, the House of Lords held that the ECHR could not
be directly enforced in UK courts because it had not been incorporated into UK law at that
time. The Human Rights Act 1998 later remedied this by incorporating the ECHR into
domestic law.
3. Criticism and Challenges Dualism is often criticized for creating potential conflicts
between a state’s international obligations and its domestic laws. Critics argue that dualism
can lead to a situation where states fail to fulfil their international obligations due to the non-
incorporation of international law into domestic law. Additionally, dualism may result in a
lack of uniformity in the application of international law across different states, undermining
the effectiveness of international legal norms.
Adoption and Transformation in the Relationship between Municipal Law and
International Law
The relationship between municipal law (domestic law) and international law is a pivotal
issue in legal theory, particularly when it comes to how international obligations are
integrated into a country's domestic legal system. The concepts of adoption and
transformation are central to understanding this relationship. These mechanisms determine
whether and how international law influences or becomes part of municipal law. In this essay,
we will explore the principles of adoption and transformation, their application in various
jurisdictions, and analyse case laws and examples that illustrate their operation.
Theoretical Framework: Adoption vs. Transformation
In the context of international law, adoption and transformation refer to different methods by
which a state might integrate international legal norms into its domestic legal order.
• Adoption refers to the direct application of international law within the domestic legal
system without the need for specific legislative enactment. Under this approach,
international law is automatically considered part of domestic law, provided it does not
conflict with existing national laws.
• Transformation, on the other hand, requires that international law be specifically
enacted or "transformed" into domestic law through legislation. This means that an
international treaty or customary international rule has no effect in the domestic legal
system until it is explicitly incorporated into national law by the legislature.
Different countries adopt varying approaches to the relationship between international and
municipal law, with some leaning more towards adoption and others towards transformation.
The Mechanism of Adoption
Adoption involves the recognition and application of international law directly within the
domestic legal framework. This approach is more common in monist systems, where
international law and municipal law are seen as a unified legal order.
Example: United Kingdom's Approach to Customary International Law
The UK, though generally a dualist system, adopts customary international law into its
domestic legal system without the need for legislative action, provided it is not in conflict
with statutory law.
• Case Law: Trendtex Trading Corp v Central Bank of Nigeria (1977): In this case, the
Court of Appeal recognized that principles of customary international law regarding
sovereign immunity were part of English law. The court held that customary international law
could be directly applied unless it contradicted an Act of Parliament or a clear rule of
common law. However, the State Immunity Act 1978 later limited this principle by codifying
and, in some cases, altering the applicable rules on state immunity.
Example: United States' Approach to Treaties
In the United States, some treaties are considered "self-executing," meaning they are
automatically considered part of domestic law upon ratification, without the need for further
legislative action. These treaties are directly applicable in U.S. courts as part of the "supreme
Law of the Land" under the U.S. Constitution.
• Case Law: Foster v. Neilson (1829): The U.S. Supreme Court distinguished between
self-executing and non-self-executing treaties. A self-executing treaty automatically has a
domestic effect, while a non-self-executing treaty requires implementing legislation by
Congress to be enforceable domestically.
The Mechanism of Transformation
Transformation is the process by which international law is given effect in domestic law
through specific legislative action. This approach is typical of dualist systems, where
international law and municipal law are treated as separate and distinct.
Example: United Kingdom’s Incorporation of Treaties
In the UK, international treaties do not automatically form part of domestic law. They must
be incorporated by an Act of Parliament to have legal effect. This reflects the UK's
commitment to parliamentary sovereignty, ensuring that international obligations only
become binding domestically when Parliament chooses to enact them into law.
• Case Law: R v. Secretary of State for the Home Department, ex parte Brind
(1991): The House of Lords confirmed that international treaties ratified by the UK do not
alter domestic law unless Parliament passes legislation to that effect. This case involved the
European Convention on Human Rights (ECHR), which had not yet been incorporated into
UK law at that time, meaning its provisions could not be directly enforced in UK courts.
• Statutory Example: Human Rights Act 1998: This Act incorporated the ECHR into UK
law, allowing UK courts to hear cases involving ECHR rights. The Act exemplifies
transformation, as it took the international obligations under the ECHR and explicitly made
them part of domestic law through parliamentary legislation.
Example: India’s Approach to International Law India follows a dualist approach similar to
the UK. Treaties and international obligations do not automatically become part of Indian law
and require legislative action for incorporation.
• Case Law: Vishaka v. State of Rajasthan (1997): In this landmark case, the Supreme
Court of India utilized international conventions, specifically the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), to inform its
decision. However, it is important to note that the Court referred to CEDAW to fill in
legislative gaps rather than directly enforce them, highlighting the need for domestic
transformation of international norms.
Comparative Analysis and Practical Implications
The choice between adoption and transformation has significant implications for the
relationship between international and domestic law:
• Flexibility and Sovereignty: Transformation allows states to exercise greater control over
how and when international obligations are integrated into domestic law, preserving national
sovereignty. However, this can lead to delays or gaps in the implementation of international
law.
• Direct Application: Adoption facilitates the seamless integration of international norms
into domestic law, ensuring that international obligations are promptly and uniformly applied.
However, it may also limit the domestic legislature's ability to adapt international rules to
local circumstances.
• Judicial Interpretation: Courts play a crucial role in mediating the relationship between
international and municipal law, particularly in systems where both adoption and
transformation mechanisms are in place. Judicial decisions can either reinforce the separation
of domestic and international law or encourage their harmonization. The mechanisms of
adoption and transformation are fundamental to understanding how international law is
incorporated into domestic legal systems. While adoption allows for the direct application of
international law, transformation requires legislative action to incorporate international norms
into municipal law. Different jurisdictions adopt these mechanisms to varying degrees,
reflecting their legal traditions and constitutional principles. Through case law and statutory
examples, we see how these concepts operate in practice, shaping the relationship between
international obligations and domestic legal orders. Ultimately, the balance between adoption
and transformation reflects a state's commitment to international law while preserving its
sovereignty and ensuring the appropriate integration of international norms within its
domestic legal framework.
Historical Development of the UK’s Approach to International Law
Common Law and International Customary Law Customary international law, which derives
from established practices among states, is considered binding on states without the need for
formal treaties. British courts have historically recognized customary international law as part
of the common law, provided it does not conflict with domestic statutes.
The leading case in this regard is R v Keyn (1876), in which the court ruled that customary
international law was not automatically part of British law unless adopted by Parliament. This
established the principle that while international customary law is respected, it has no direct
application unless incorporated into domestic law. Treaties and Their Status in Domestic Law
In the UK, treaties are entered into by the executive branch but do not have domestic legal
effect unless they are incorporated through legislation. This practice upholds the principle of
parliamentary sovereignty.
The case of J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry (1990)
(commonly known as the "Tin Council Case") reaffirmed this principle. In this case, the
House of Lords ruled that an unincorporated treaty (i.e., one that has not been passed into
domestic law by Parliament) does not create enforceable rights or obligations within the UK
legal system. This reflects the broader British tradition of maintaining a clear separation
between the making of treaties (an executive function) and the implementation of their
provisions (a parliamentary function).
The Role of the Parliament: Sovereignty and Legislation
A fundamental feature of the UK’s approach is the doctrine of parliamentary sovereignty,
which holds that Parliament is the supreme legal authority in the UK, capable of enacting,
amending, or repealing any law. Under this principle, Parliament cannot be bound by
international obligations unless it explicitly incorporates them into domestic law. This
approach is evidenced by the process of treaty implementation in the UK.
For example, when the UK ratified the European Convention on Human Rights (ECHR), it
did not become immediately enforceable in domestic courts. It was only after the Human
Rights Act 1998 was passed by Parliament that the rights and obligations under the ECHR
became part of British law. The process of implementing the ECHR demonstrates how the
UK balances its international commitments with its constitutional framework of
parliamentary sovereignty.
While the UK government may enter into international treaties, it is up to Parliament to
decide whether and how to give effect to these treaties domestically. The Interaction Between
International Law and Municipal Law:
Key Case Laws
The Pinochet Case (1998-1999) The Pinochet case provides a significant example of how
British courts grapple with the relationship between international law and domestic law.
General Augusto Pinochet, the former Chilean dictator, was arrested in London in 1998 based
on a Spanish extradition request for crimes against humanity. This case revolved around the
question of whether a former head of state could be extradited for acts committed while in
office.
The House of Lords ruled that Pinochet did not enjoy immunity for acts of torture committed
after 1988, when the UK had ratified the UN Convention Against Torture and passed the
Criminal Justice Act 1988, incorporating the convention into domestic law.
The judgment demonstrates how the UK legal system interacts with international law,
particularly when treaties are incorporated into domestic law, giving British courts the
authority to prosecute international crimes.
The Belmarsh Case (2004)
In A and others v Secretary of State for the Home Department (2004), commonly referred to
as the Belmarsh case, the UK House of Lords dealt with the tension between domestic law
and international human rights obligations. The case concerned the indefinite detention of
foreign nationals suspected of terrorism without trial under the Anti-Terrorism, Crime and
Security Act 2001. The House of Lords ruled that this detention violated the European
Convention on Human Rights (ECHR), specifically the right to liberty under Article 5. This
case illustrates how British courts may challenge domestic legislation that conflicts with the
UK's international human rights obligations, as incorporated by the Human Rights Act 1998.
The Miller Cases: Brexit and the UK’s International Obligations
The two Miller cases provide a contemporary context for analyzing the tension between
international obligations and domestic sovereignty. The cases concerned the UK's withdrawal
from the European Union (EU), following the 2016 Brexit referendum. In Miller I (2017), the
UK Supreme Court ruled that the government could not trigger Article 50 of the Treaty on the
European Union, initiating the UK's withdrawal from the EU, without first obtaining
parliamentary approval.
The court emphasized that treaties, including the EU treaties, do not have direct domestic
effect unless incorporated into UK law by Parliament. In this case, the European
Communities Act 1972 had given EU law direct effect in the UK, and its repeal required an
act of Parliament. In Miller II (2019), the UK Supreme Court ruled that Prime Minister Boris
Johnson's advice to the Queen to prorogue Parliament was unlawful. While this case did not
directly involve international law, it highlighted the constitutional principles of parliamentary
sovereignty and the rule of law, which have significant implications for how the UK manages
its international obligations.
The Tension Between International Obligations and Domestic Sovereignty
The tension between international obligations and domestic sovereignty is a recurring theme
in British legal practice. The UK has had to balance its desire to comply with international
law with its commitment to upholding the principle of parliamentary sovereignty. This
tension is particularly acute in areas such as human rights, international trade, and security.
The Role of the Human Rights Act 1998
The Human Rights Act 1998 is a key statute in this context, as it incorporates the ECHR into
domestic law and allows British courts to hear human rights cases based on the convention.
However, the Act does not give British courts the power to strike down domestic legislation
that is incompatible with the ECHR. Instead, courts can issue a declaration of incompatibility,
which signals to Parliament that the law in question does not comply with the UK's
international human rights obligations.
Parliament is then expected to amend the law, though it is not legally required to do so. This
system reflects the UK’s careful balancing act: on the one hand, it ensures that international
human rights standards are taken into account in domestic law; on the other hand, it preserves
the supremacy of Parliament, which retains the final say on legislative changes. Brexit:
Sovereignty and International Law
The UK's withdrawal from the European Union further illustrates the complexity of
managing international obligations while maintaining domestic sovereignty. Throughout its
membership in the EU, the UK was subject to EU law, which had a direct effect on domestic
courts and took precedence over conflicting domestic legislation.
The European Communities Act 1972 facilitated this arrangement by giving EU law
domestic effect. However, the decision to leave the EU, as articulated in the 2016 Brexit
referendum, was driven in part by a desire to "take back control" of the UK's legal and
political systems. This slogan reflected concerns that EU membership had eroded
parliamentary sovereignty by subjecting the UK to laws made by EU institutions. The
subsequent repeal of the European Communities Act 1972 and the passage of the European
Union (Withdrawal) Act 2018 marked a return to the principle that international agreements
(such as trade deals or new arrangements with the EU) would only have domestic legal effect
if incorporated by Parliament.
Case Law and Statutory Examples of Tensions
R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport (2014)
In this case, the UK Supreme Court was asked to consider the legality of the HS2 high-speed
rail project in light of the UK’s obligations under the EU’s Environmental Impact Assessment
Directive. The Supreme Court ruled that while UK courts must interpret domestic law
consistently with EU law, parliamentary sovereignty ultimately prevails. The ruling
demonstrated that the courts were unwilling to prioritize EU law over domestic sovereignty,
reinforcing the UK's dualist legal system.
The UK's Response to the International Criminal Court (ICC)
The UK was one of the first countries to ratify the Rome Statute of the International Criminal
Court (ICC) in 2001, incorporating it into domestic law through the International Criminal
Court Act 2001. This act illustrates how the UK implements its international obligations by
ensuring that domestic courts can prosecute crimes within the ICC’s jurisdiction, including
war crimes, genocide, and crimes against humanity. However, the UK's implementation of
the ICC Statute has not been without controversy. Some politicians and legal commentators
have raised concerns that the ICC’s jurisdiction could undermine British sovereignty,
particularly when it comes to prosecuting British military personnel for alleged war crimes.
This issue highlights the ongoing tension between fulfilling international legal obligations
and maintaining control over domestic legal processes.
India’s Approach:
A Dualist Framework India’s legal framework follows the dualist approach when dealing
with the interaction between international law and domestic law. According to this principle,
international law must be transformed into domestic law before it can be applied by Indian
courts. Article 253 of the Constitution of India empowers Parliament to make laws for
implementing international treaties, agreements, or conventions. This provision reflects the
dualist stance by explicitly requiring legislative action to enforce international obligations
within the domestic legal system.
Constitutional Provisions
The Constitution of India lays down several provisions that shape the country’s approach to
international law. The most significant of these are:
1. Article 51 (Promotion of International Peace and Security): This Article in the Directive
Principles of State Policy obliges the state to endeavour to respect international law and
treaty obligations. Though non-enforceable, Article 51 reflects India’s commitment to
upholding international obligations and promotes harmony between international law and
municipal law.
2. Article 73 (Extent of Executive Power): Article 73 delineates the extent of the executive
power of the Union. The executive is empowered to enter into treaties and agreements
with other states and international organizations. However, the enforcement of treaties in
the domestic sphere requires legislative intervention.
3. Article 253 (Legislation for Giving Effect to International Agreements): This Article
empowers Parliament to make laws for the whole or any part of the territory of India for
implementing international treaties, agreements, or conventions. It grants Parliament
exclusive power to legislate on matters within the State List to give effect to international
obligations. This provision underscores the dualist framework by requiring legislation to
domesticate international law.
4. Seventh Schedule (Union, State, and Concurrent Lists): The distribution of legislative
powers between the Union and the States is governed by the Seventh Schedule. Though
foreign affairs and treaty-making are under the Union List, matters such as public health,
education, and criminal law (which often intersect with international human rights
obligations) may fall under the State List. Article 253 provides an exception by allowing
Parliament to legislate on matters in the State List for implementing international
agreements.
Incorporation of International Treaties into Indian Law
 India’s process of incorporating international treaties into its domestic legal framework is
governed by constitutional provisions and judicial interpretations. Given its dualist approach,
international treaties are not automatically enforceable in India. Instead, the following
mechanisms are in place to incorporate treaties into municipal law:
1. Treaty-Making Power of the Executive The executive has the authority to negotiate
and sign treaties with foreign states and international organizations. However, as per
Article 73 of the Constitution, the executive power in this regard is subject to legislative
oversight. The executive cannot, on its own, alter domestic law to implement
international treaties. To enforce treaty obligations, the executive must rely on
Parliament to pass appropriate legislation.
2. Legislative Action for Treaty Implementation
To incorporate an international treaty into domestic law, Parliament must enact
legislation under the powers conferred by Article 253. For instance, if India enters into a
trade agreement requiring certain tariff regulations or standards, Parliament must enact
laws to give legal effect to the provisions of the treaty. Examples of such incorporation
include:
• The Protection of Human Rights Act, of 1993, which gave effect to India's obligations
under international human rights instruments such as the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social, and
Cultural Rights (ICESCR).
• The Extradition Act, of 1962, which implements India’s obligations under bilateral and
multilateral extradition treaties.
• The Environment Protection Act, of 1986, which followed India’s obligations under
international environmental treaties like the Stockholm Declaration of 1972.
Parliament’s role in legislating treaty provisions ensures that international obligations
align with India’s domestic legal framework and democratic principles.

Self-Executing and Non-Self-Executing Treaties

In some jurisdictions, treaties can be categorized as either self-executing or non-self

executing. A self-executing treaty does not require additional legislative action to be
enforceable within a state’s legal system. In contrast, a non-self-executing treaty requires
legislative implementation before it becomes enforceable. In India, the dualist system
generally treats all treaties as non-self-executing. This means that for a treaty to have
domestic legal effect, Parliament must enact enabling legislation. Without such legislation,
the treaty cannot be invoked in Indian courts. This approach reinforces the principle of
parliamentary sovereignty, ensuring that international treaties do not infringe upon domestic
law without legislative approval.
The Role of the Indian Judiciary in Incorporating International Law
Judicial Interpretation and Application Indian courts have consistently upheld the dualist
approach, requiring explicit legislative incorporation for international treaties to be
enforceable domestically. However, Indian courts have also developed jurisprudence that
allows for the application of international law principles in certain contexts, particularly when
domestic law is silent or ambiguous.
• Vishaka v. State of Rajasthan (1997): This landmark case concerned the absence of
specific domestic legislation addressing sexual harassment in the workplace. The Supreme
Court of India, in the absence of such legislation, relied on international conventions,
particularly the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), to frame guidelines for the protection of women against sexual
harassment. The Court observed that international conventions not inconsistent with
fundamental rights and in harmony with their spirit could be read into domestic law.
• Jolly George Verghese v. Bank of Cochin (1980): In this case, the Supreme Court of India
examined the relationship between international covenants and domestic law. The Court held
that while international treaties ratified by India do not automatically become part of
municipal law, they can be used to interpret domestic statutes. The case involved the
International Covenant on Civil and Political Rights (ICCPR), and the Court used the
covenant to support its decision that a debtor should not be imprisoned solely due to the
inability to repay a loan unless there was fraud involved.
• Maganbhai Ishwarbhai Patel v. Union of India (1969): This case highlighted the dualist
nature of India’s legal approach to international treaties. The Supreme Court held that the
government has the power to enter into treaties, but these treaties do not have the force of law
unless Parliament enacts legislation to implement them. The case involved an agreement
between India and Pakistan over the Kutch border, where the Court ruled that the agreement
did not alter the existing law without legislative action.
Conflict Between International Law and Domestic Law
In cases where there is a direct conflict between international law and domestic law, the
Indian judiciary has emphasized the supremacy of domestic law. International treaties that
have not been legislated into domestic law cannot override the provisions of Indian law.
However, where domestic law is silent or ambiguous, courts may refer to international
treaties to guide their decisions.
For instance, in Maganbhai Patel v. Union of India (1969)the Supreme Court held that if
there is a conflict between international law and municipal law, domestic law will prevail
unless Parliament passes legislation to give effect to the international obligation.
Moreover, in Kesavananda Bharati v. State of Kerala (1973), the Supreme Court clarified
that the Constitution of India is the supreme law of the land, and no international treaty can
override the fundamental structure of the Constitution.
Legislative Incorporation of International Treaties
India follows a practice where international treaties and obligations must be incorporated into
domestic law through specific legislation passed by Parliament. Without such incorporation,
international treaties cannot be enforced in Indian courts. Several key examples illustrate this
practice:
• The Geneva Conventions Act, 1960: India ratified the Geneva Conventions of 1949,
which established international legal standards for humanitarian treatment in war. To
give effect to these conventions domestically, India enacted the Geneva Conventions
Act, of 1960, which incorporates the provisions of the Conventions into Indian law.
• The Protection of Human Rights Act, 1993: India is a party to various international
human rights treaties, including the International Covenant on Civil and Political Rights
(ICCPR). The Protection of Human Rights Act, of 1993, was enacted to give effect to
these international obligations and to establish the National Human Rights Commission
(NHRC) for the protection of human rights in India.
India’s Practice in Human Rights and Environmental Law
India’s approach to international law is particularly significant in the areas of human rights
and environmental protection, where the Supreme Court has frequently referred to
international conventions and principles to enhance domestic jurisprudence.
• Environmental Protection: In several cases, the Supreme Court of India has invoked
international environmental principles, such as the precautionary principle and
sustainable development, which are part of customary international law, even though
India may not have explicitly incorporated these principles into domestic legislation.
For example, in the Vellore Citizens' Welfare Forum v. Union of India (1996) case, the
Supreme Court applied the precautionary principle and the polluter pays principle,
citing international conventions like the Stockholm Declaration.
• Human Rights: The Supreme Court has also played a proactive role in interpreting and
expanding fundamental rights under the Constitution in light of international human
rights norms. For example, in the case of People’s Union for Civil Liberties v. Union of
India (2004), the Court cited the ICCPR to reinforce the right to privacy, despite the
absence of explicit domestic legislation.
India’s relationship between international law and municipal law is characterized by a dualist
framework, where international treaties and obligations do not automatically become part of
the domestic legal system. Instead, they require legislative incorporation to be enforceable in
Indian courts. However, Indian courts have shown a willingness to interpret domestic law in
harmony with international obligations, particularly in areas such as human rights and
environmental protection. This approach allows India to fulfil its international commitments
while respecting the sovereignty of its legal system and the supremacy of its Constitution.
The interplay between international and domestic law in India reflects a nuanced balance
between adherence to global norms and the preservation of national legal autonomy.

Customary International Law in India

Customary international law refers to international norms and practices that are accepted as
law through consistent state practice and a sense of legal obligation. Unlike treaties, which
require formal ratification, customary international law evolves from state practices and is
often unwritten. Indian courts have recognized the binding nature of customary international
law, provided that it does not conflict with domestic statutes or constitutional provisions. In
Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984), the Supreme Court
held that customary international law is part of Indian law unless it is inconsistent with
domestic legislation.
The court stated: "The comity of nations requires that rules of international law may be
accommodated in the municipal law even without express legislative sanction, provided they
do not run contrary to statute law or the Constitution."
Thus, customary international law can be applied directly in Indian courts, but it must yield to
domestic law in case of conflict.
Challenges in the Incorporation of International Law Despite the mechanisms in place for the
incorporation of international treaties into domestic law, several challenges persist in India’s
approach to integrating international law:
1. Delay in Legislative Action: One of the major challenges is the delay in enacting
domestic legislation to give effect to international treaties. For instance, although India is
a signatory to the United Nations Convention against Torture (UNCAT), it has yet to pass
domestic legislation to criminalize torture, despite widespread calls for such a law.
2. Lack of Uniformity: The distribution of legislative powers between the Union and the
States can create conflicts when international obligations touch upon areas within the
State List. While Article 253 allows Parliament to legislate on matters in the State List,
this may lead to tensions between the Union and State governments regarding the
implementation of international treaties.
3. Judicial Activism and Executive Caution: Indian courts have been proactive in referring
to international treaties and customary international law to interpret domestic law.
However, this judicial activism sometimes encounters resistance from the executive and
legislative branches, which may be more cautious in incorporating international law.
4. Public Awareness and Involvement: The general public in India often lacks awareness of
the country's international treaty obligations. There is limited engagement with the treaty-
making process, which is primarily controlled by the executive branch. Greater public
participation in treaty-making and the legislative process could enhance the legitimacy
and acceptance of international norms within domestic law.
The U.S. Constitution and International Law
The U.S. Constitution provides a foundational framework for understanding how
international law is applied domestically. The Supremacy Clause (Article VI, Clause 2) states
that "all treaties made, or which shall be made, under the authority of the United States, shall
be the supreme Law of the Land." This suggests that treaties, as international agreements, can
have direct domestic legal effect, placing them on the same level as federal statutes.
However, the Constitution is silent on the status of customary international law, which has led
to differing interpretations of its role in the U.S. legal system.
The Treaty Clause (Article II, Section 2) grants the President the power to make treaties with
the "advice and consent" of two-thirds of the Senate. This procedural requirement ensures
that international commitments have democratic legitimacy and underscores the dualist
nature of U.S. legal practice, where international obligations must pass through domestic
legislative channels before having legal force within the country.
U.S. Approach: Dualism with Monist Elements
The U.S. follows a predominantly dualist approach to the relationship between international
law and domestic law, wherein the two are seen as separate legal systems. International law
does not automatically have domestic effect unless incorporated through legislation or
recognized by the judiciary. However, this dualism is not absolute, as some international
norms, particularly those in treaties, may have direct application within U.S. law without the
need for further legislative action. This dynamic is best understood by distinguishing between
self-executing and non-self executing treaties:
• Self-executing treaties: These are treaties that do not require additional legislation to be
enforceable within the U.S. legal system. They can be directly applied by courts and enforced
as domestic law.
• Non-self-executing treaties: These treaties require implementing legislation before they can
be applied domestically. Without such legislation, they cannot be enforced in U.S. courts,
even though the United States may still be bound by the treaty at the international level. Case
Law and Judicial Interpretation The U.S. judiciary has played a crucial role in determining
how international law is treated within the domestic legal system.
Several key Supreme Court cases illustrate the U.S. practice of balancing international and
municipal law.
1. Foster & Elam v. Neilson (1829) In this landmark case, the U.S. Supreme Court, under
Chief Justice John Marshall, established the distinction between self-executing and non-self-
executing treaties. The case involved a dispute over land rights granted under a Spanish
treaty. The Court held that the treaty in question was non-self-executing and thus required
additional legislative action to be enforceable in U.S. courts. This case laid the foundation for
the U.S. dualist approach, affirming that treaties do not always have direct domestic legal
effect without congressional implementation.
2. Missouri v. Holland (1920) Missouri v. Holland is a seminal case that expanded the U.S.
understanding of the supremacy of treaties over domestic law. In this case, the Supreme Court
upheld a federal law implementing the Migratory Bird Treaty between the U.S. and the
United Kingdom, despite objections from the state of Missouri. The state argued that
regulating birds was beyond the powers of the federal government under the Tenth
Amendment. The Court, however, ruled that the treaty and its implementing legislation took
precedence over state law, affirming that treaties are part of the "supreme law of the land."
This case demonstrated that the federal government’s treaty power could override state law,
reinforcing the monist elements within U.S. practice.
3. Medellín v. Texas (2008) Medellín v. Texas is one of the most important cases for
understanding the U.S. approach to non-self-executing treaties. The case involved a Mexican
national, José Medellín, who had been sentenced to death in Texas without being informed of
his rights under the Vienna Convention on Consular Relations. The International Court of
Justice (ICJ) ruled that the United States had violated its treaty obligations by failing to notify
Medellín of his rights. However, the U.S. Supreme Court held that the ICJ ruling was not
enforceable in domestic courts because the Vienna Convention was non-self-executing, and
Congress had not passed legislation to implement it. This case reaffirmed the principle that
non-self-executing treaties require domestic legislation to be enforceable.
Customary International Law in U.S. Practice The status of customary international law in
the U.S. legal system is more ambiguous than that of treaties. Customary international law
refers to practices that are widely followed by states out of a sense of legal obligation. The
U.S. has historically recognized customary international law as part of the "law of the land,"
but its application within the domestic legal system is subject to judicial interpretation.
1. The Paquete Habana (1900) In this case, the U.S. Supreme Court ruled that customary
international law is part of U.S. law unless explicitly overridden by a controlling statute or
treaty. The case involved the seizure of two Spanish fishing vessels by the U.S. Navy during
the Spanish-American War. The Court found that, under customary international law, fishing
vessels were exempt from capture during wartime and ruled in favour of the Spanish owners.
This case established that U.S. courts could apply customary international law unless there
was a conflicting federal statute or treaty.
2. Sosa v. Alvarez-Machain (2004) In Sosa v. Alvarez-Machain, the Supreme Court addressed
the application of customary international law in U.S. courts under the Alien Tort Statute
(ATS). The ATS allows foreign nationals to bring civil suits in U.S. courts for violations of
international law. The case involved the abduction of a Mexican national by the U.S.
government. While the Court ultimately ruled against the plaintiff, it recognized that certain
violations of customary international law could be actionable under the ATS, but only if they
are well-established and universally recognized norms. This decision underscored the limited
role of customary international law in U.S. courts, requiring a high threshold for its
application in domestic cases.
Legislative Measures: Incorporating International Law into U.S. Law The U.S. Congress
plays a crucial role in incorporating international law into the domestic legal system,
particularly concerning non-self-executing treaties and international agreements that require
implementation through legislation. Several examples highlight how Congress has used its
legislative powers to bring the U.S. into compliance with international obligations.
1. The War Crimes Act of 1996
The War Crimes Act of 1996 is an example of domestic legislation that incorporates
international law into the U.S. legal system. This act makes it a federal crime to commit war
crimes as defined under the Geneva Conventions. By enacting this law, Congress ensured that
U.S. obligations under international humanitarian law were enforceable within the U.S. legal
framework.
2. The Foreign Sovereign Immunities Act (FSIA) of 1976 The FSIA codifies the principle of
sovereign immunity under international law, which generally shields foreign states from
being sued in domestic courts. However, the FSIA also provides exceptions to this rule,
allowing foreign states to be sued in U.S. courts under certain circumstances, such as when
they engage in commercial activities or commit violations of international law. The FSIA
demonstrates how Congress has legislated to incorporate international legal principles into
U.S. law while balancing the need to protect foreign sovereigns from litigation.
3. The Torture Victim Protection Act (TVPA) of 1991 The TVPA allows individuals to sue for
acts of torture or extrajudicial killings committed under the authority of a foreign
government. This act was passed to implement the Convention Against Torture and
demonstrates how the U.S. can incorporate international human rights obligations into its
domestic legal framework through congressional action.
Tension Between International Law and U.S. Sovereignty
Despite the incorporation of international law in many areas, the U.S. has been reluctant to
fully embrace certain international norms, particularly in cases where they are perceived as
infringing on national sovereignty. The U.S. has refused to ratify key international treaties
such as the Rome Statute of the International Criminal Court (ICC) and the Convention on
the Law of the Sea (UNCLOS), citing concerns about encroachments on U.S. sovereignty and
the potential for foreign courts to assert jurisdiction over U.S. nationals.
Additionally, domestic legal principles, such as federalism and the separation of powers,
often create tensions with international obligations. For example, in cases involving human
rights treaties, the U.S. government has sometimes argued that certain provisions cannot be
enforced at the state level without infringing on states' rights. This has led to situations where
international human rights obligations are not fully implemented within the U.S.
Germany
Germany provides an example of a state where the relationship between international and
municipal law is explicitly addressed in the constitution. The German Basic Law
(Grundgesetz) adopts a monist approach by providing those international treaties, once
ratified, have the force of law domestically. Article 25 of the Basic Law states that general
rules of international law are an integral part of federal law and take precedence over
domestic legislation.
The Solange I and Solange II decisions by the German Constitutional Court are pivotal in
understanding Germany's approach to international law, particularly EU law. The Court in
Solange I (1974) held that it would not review EU law as long as (Solange) it ensured
equivalent protection of fundamental rights. Later, in Solange II (1986), the Court affirmed
that EU law would be respected as long as it continued to provide adequate protection of
fundamental rights. These decisions illustrate a nuanced application of monism, where the
domestic legal system retains a degree of oversight over the application of international law.
United Kingdom
The interplay between municipal law (domestic law) and international law in the United
Kingdom (UK) is a complex and evolving area of legal theory and practice. This relationship
is governed by principles that determine how international obligations are incorporated into
and applied within the UK’s legal system. The UK follows a dualist approach. This means
that international treaties and obligations are not automatically part of UK law. They must be
incorporated by an Act of Parliament or other domestic legislation to have legal effect within
the UK.
Incorporation of International Law into UK Law
The UK’s dualist system requires the incorporation of international treaties through domestic
legislation. Two primary methods are used for this incorporation: transformation and
adoption. Transformation involves translating the terms of an international treaty into
domestic law through an Act of Parliament. For example, the Human Rights Act 1998
incorporated the rights contained in the European Convention on Human Rights (ECHR) into
UK law. This Act allows UK courts to hear cases involving ECHR rights without the need to
appeal to the European Court of Human Rights in Strasbourg. Adoption occurs when
domestic law is interpreted in a manner consistent with international obligations, even if the
treaty has not been formally incorporated. This approach is less direct and is often dependent
on the willingness of the judiciary to align domestic law with international standards.
Case Law and Statutes
Several key cases and statutes illustrate how international law interacts with UK municipal
law.
• R v. Lyons (2002): In this case, the House of Lords reaffirmed the principle that
international treaties do not alter UK law unless and until they are incorporated by domestic
legislation. The case involved the European Convention on Human Rights, where the court
held that while international treaties are relevant, they do not override UK law unless
specifically enacted by Parliament.
• Human Rights Act 1998: This statute is a prime example of the incorporation of
international law into UK law. The Act requires UK courts to take into account the decisions
of the European Court of Human Rights and, where possible, to interpret domestic legislation
in a manner compatible with the rights set out in the ECHR.
• R (Miller) v Secretary of State for Exiting the European Union (2017): This case, often
referred to as the "Brexit case," highlighted the principle of parliamentary sovereignty in the
context of international law. The Supreme Court held that the government could not trigger
Article 50 of the Treaty on European Union (beginning the process of leaving the EU)
without an Act of Parliament, reaffirming that international treaties do not have domestic
effect unless Parliament legislates.
• Re McKerr (2004): The House of Lords ruled that the Human Rights Act 1998 did not
apply retrospectively to acts that occurred before the Act came into force. This case
underscores the principle that while international obligations may influence domestic law,
they do not have automatic retroactive effects unless explicitly provided for in the legislation.
The Role of Customary International Law
While treaties require incorporation, customary international law (CIL) is treated somewhat
differently. The UK courts recognize customary international law as part of the common law,
provided it is not in conflict with an Act of Parliament or judicial precedent. However, its
application is generally limited and subject to the constraints of domestic law.
For example, in Trendtex Trading Corp v Central Bank of Nigeria (1977), the Court of
Appeal recognized that customary international law regarding sovereign immunity was part
of UK law. However, Parliament later modified this principle through the State Immunity Act
1978, demonstrating the supremacy of domestic legislation over customary international law.
The relationship between municipal law and international law in the UK is governed by the
principle of dualism, where international treaties require incorporation through domestic
legislation to have legal effect. While UK courts may consider international law, it does not
override domestic statutes unless Parliament enacts it