International Law is a system of rights and duties given to a legal system so
that they can exercise them at a global level. There are different International
bodies that are subject to possession of such rights under customary law and
therefore also have the privilege for bringing any claim if there is a violation of
their rights.
The determination of the personality of these bodies depends mainly upon the
nature and extent of particular rights and duties. With the evolution of
International law, it is necessary to determine the inter-relationship between
these bodies and their capacity to enforce claims as per their rights and duties.
These bodies may include states, international organizations, regional
organizations, non-governmental organizations, and individuals.
States
States have international legal personality to the fullest extent. They constitute
one of the most important international organizations as they form the primary
centre for the collection of the social activities of civilization.
The doctrine of Recognition – Creation of Statehood
Recognition of the state is an International Concept wherein a new state or an
existing state is given a formal acknowledgement of being a member of the
International community. According to Article 1 of the Montevideo Convention
on the Rights and Duties of States, 1933 and Oppenheim, the entity of a state
can be created if it possesses the following characteristics:
1. Defined Territory
2. Population
3. Government
4. Capacity to enter into a relationship with another state
However, there is no set pattern recognized so far which forms a particular base
for the recognition of statehood as per the above criteria. Such provisions are
neither exhaustive nor immutable. Recognition of a statehood grants certain
privileges in the form of rights, duties, and immunities which include the
authority to enter into a foreign relation with another state, became a part of a
treaty, the right to undergo succession and become a member of the United
Nations. There are two theories on recognition which are:
Declaratory Theory
The theory was propounded by eminent jurists such as Fisher and Brierly, under
this theory the independence of a new state does not take into account its
acceptance by other states. The theory has been given in Article 3 of the
Montevideo Convention where it recognizes the existence of a new state does
not depend upon the mind of the existing state’s consent.
Consecutive Theory
Oppenheim proposed this theory wherein it stated that for a state to be
considered as an International entity, it is necessary for it to be recognized by
other sovereign states so that it can enjoy its rights and duties. The theory does
not propose the non-existence of a state rather it places an emphasis on
acceptance by other states for a state to enjoy their exclusive rights.
When a state is recognized, there are two ways by which it can be declared
which is:
Express Recognition
Expressed Recognition is done through an official notification or declaration by
an existing state recognising the presence of a newly formed state. This
category usually recognizes a de jure form of recognition unless provided
otherwise by the recognizing state in the declaration for considering it under
any other form.
Implied Recognition
The action of an existing act done impliedly which indicates acceptance to a new
act as an International person is considered as a form of Implied Recognition.
There can be several implied actions for instance speeches, declarations etc. It
depends on a case-by-case basis.
Recognition of a government
The criteria laid down for recognition of a government is different from that of
recognition of a state. In case of a newly formed government, it is necessary to
check the constitutionality of the government to ensure a valid recognition of
the same. When a new state comes into existence it becomes necessary to
check the structure of the new government to ensure international standards
are being followed.
Following criteria needs to be checked for recognizing a newly formed
government:
1. Sufficient control and power by the government over its population.
2. The capacity of the new government to fulfil its international
obligations and duties.
There are various theories which have been accepted for recognizing the
government but the most prominent amongst them is the so-called doctrine of
legitimacy, it was initially used by the United States in relation to Central
America, but the theory declined gradually.
Recognition practice as per the USA
In the USA only a recognized state can sue, there is a line of legal precedents
on the practice of recognition by the USA, for instance in the Salimoff case the
terms of the certificate tended to encourage the court to regard the Soviet
government as a recognized government, on the other hand, in the case of the
Market the tone of the executive’s statement on the Soviet Republic of Estonia
was decidedly hostile to any notion of recognition or enforcement of its decrees.
In 1977, the United States declared that instead of focusing on the change in
the government, they should try to establish the need for diplomatic relations
and if the administration is willing to involve and conduct business with other
governments.
Therefore, the US prefers to initiate diplomatic relations to recognize the
government. It has been observed that the United States typically avoids taking
the lead in recognition, waiting for the domestic politics to play out or for
regional bodies like the Organization of American States to resolve the crisis
before deciding whether to confer legitimacy on the new government. In the
case of Honduras, for instance, the United States followed the lead of other
Latin American countries in deeming Zelaya’s oysters illegitimate.
International Organization(IO)
The International Community is an amalgamation of various voices and
opinions, therefore with the growing need for international cooperation and to
ensure peace in this community International Organization have emerged. An
international organization has been defined as a form of co-operation of
sovereign states based on multilateral international organizations and consisting
of a relatively stable range of participants, the fundamental feature of which is
the existence of permanent organs with definite competences and powers acting
for the carrying out of common aims. The essential elements which describe
International organization include:
1. Multilateral International agreement
2. Individual Personality of the Institution
3. Permanent organs carrying out its Function
International Organizations are usually created amongst states or by their duly
authorized representatives, however, there is no uniform rule on the same,
states sometimes create legal entity based on a treaty though are there to
enforce and uphold the principles of a treaty such as European Court of Human
Rights but they are not considered as International Organisations.
An international organisation may come into existence by the formation of a
treaty or through an existing organisation granting certain powers for forming
an international organisation. UNICEF is an International organisation which was
formed by the United Nations General Assembly.
Development of International organisation
The development of IO can be traced from the need for establishing the
psychological notion of world government. It was only in the 19th-century
major IO’s that emerged before that there were smaller councils like the
Hanseatic League or the Swiss Confederation and the United Provinces of the
Netherlands etc.
Embassies establishing bilateral needs were not sufficient and adequate to solve
problems that arose between more than two states, there was a need to find a
way so that interest of all the states can be represented so an International
conference of all the representatives from several states was organized which
came to be known as the principal originator IO namely Peace of Westphalia in
1648, which ended the thirty-year religious conflict of Central Europe and
formally established the modern secular nation-state arrangement of European
politics.
Till the first world war, the major issues were sought through conferences, for
instance, in 1815 congress of Vienna marked the first systematic attempt to
regulate international affairs by means of regular international conferences.
Due to several inconsistencies in the ad-hoc nature of these conferences,
because they were only state-specific in nature and could only be called upon by
the initiative of the interested states, international NGOs and public
international unions like the International Committee of Red Cross and the
inter-governmental associations emerged during the 19th Century for efficient
functioning of vital arteries of communication such as the Rhine and Danube
rivers.
With the continuous evolution of the society, it was noticed that an efficient
body of IO can be established, and the League of Nations was the first
international organization which was designed not just to organization operation
between states in areas which some have referred to as ‘low politics’, such as
transport and communication, or the more mundane aspects. However, after
World War II, the league of the nation was disbanded due to its inefficiency and
the United Nations was founded in 1919.
Relationship between International Law and
Municipal Law
Law is the element of the society which helps to develop a framework within
which rights and duties can be established. World order today requires a
method whereby interstate relations could be conducted, and International law
fills this gap.
The United Nations developed this body of International law for the purpose of
promoting international peace and security. Countries come together to make
binding rules that they believe benefit their citizens. International laws promote
peace, justice, common interests and trade. States work together to strengthen
International law because it plays an important role in society.
It is directly and strongly influenced, although not made, by the writings of
jurists and publicists, instructions to diplomatic agents, by important
conventions even when they are not ratified, and by arbitral awards.
Theories on the relationship between
International law and Municipal law
The two principal theories of the relationship between International law and
Municipal law are known as Monism and dualism. As per the beliefs of Monism,
International law and state’s Municipal law are two components but
complementary aspects of one single system. According to dualism, they are
entirely distinct and different legal systems on their own. International law has
an intrinsically different character from that of the state law, because in
International law a large number of the State’s legal system are involved, the
dualist theory is sometimes known as the pluralistic theory.
To know the relationship between International law and Municipal law, it is
crucial to understand what these two laws actually are. The rules and
regulations which deal with the conduct of states is known as International law.
In order to simplify we can say, a set of principles which the states can invoke
or apply while dealing with other states or international organizations. On
similar grounds, it is also called “the law of the nations”. On the other hand, The
Municipal law is known as the internal law of the land.
Monistic theory
International law operates only at the International level and the Municipal law
operates only on its local jurisdictional limits. However, the advocates of natural
law believe that Municipal and International law form a single legal system, this
approach is commonly known as Monism.
To have a better understanding of this topic it is crucial to understand what
natural law is; natural law is something that exists in isolation with the positive
law. As the name suggests, it is determined by nature, the law of nature is
objective and universal in nature. From the time of inception, natural law is
referred to analyze human nature to deduce moral behaviour from nature.
The argument from the side of a Monist is pretty simple, they believe Municipal
law and International law if looked together is nothing but a single system.
Modern writers who favor the monistic approach endeavors that a major portion
of their views are based on a strictly scientific analysis of the Municipal structure
of legal systems.
In a true monist country, there is no need for the translation of International
law into Municipal law. Once the state gives assent to the treaty, it
automatically gets incorporated in its municipal law. This act of giving assent to
an International treaty or obligation will immediately incorporate international
principles into states’s Municipal law, (this is inclusive of customary
International law).
International law can be applied by a Municipal Court, and can be invoked by
citizens, contingent on the fact that the international law is translated into the
state’s Municipal law. A municipal court can declare a law as unconstitutional if
it contradicts International principles.
In a true monist state, if a national law contradicts International law then it
becomes null and void, no matter whether it is of constitutional nature or not.
For example, a state gives assent to the Convention on the Rights of Persons
with Disabilities, however, a few of its national laws are in contradiction with the
conventions rights of the individuals who suffer from a disability. Then, a citizen
of that country, who is not getting deprived of the rights conferred by the
treaty, can ask the national courts to apply the treaty.
In a Monist State, the International law gets automatically accepted and the
contradicting part automatically gets translated away the moment the State
ratifies the treaty.
Kelsen: Grundnorm theory
For Kelsen, International and Municipal law is nothing but “manifestations of a
single unit of law”. Kelsen’s belief in the supremacy of International law is the
result of his “basic norm”, which states that: ‘states should behave as they
customarily have behaved’.
International law is supreme in nature as it represents a legal order which is
higher than Municipal laws, it is because the International law is derived from
the state’s practice on the other hand the Municipal law gains its power from the
state’s internal affairs.
Once it is accepted that International law is a system of rules of a legal
character, it becomes impossible according to kelson to deny that the two
systems constitute as a single system.
The theory of International law and Monism doesn’t have any halfway house.
Kelson observed natural law and International law as a single and coherent
system. According to him, International law is placed at the top of the pyramid
(as per his grundnorm hypothesis).
Dualist theory
Unlike Monists, dualists have stressed on the difference between International
law and Municipal law and have argued for the adoption of International treaties
in the Municipal law of the State. According to dualists, in absence of this
adoption by the State the International law will not exist as a law.
The reason why dualists have this view is because they believe International law
and Municipal law are two different aspects of law and it would be unreasonable
to take the two as a unity. As per their belief, International law and Municipal
law are two distinct and independent systems in itself.
In a dualist State, it is of utmost importance that International law has to be
drafted in its Municipal law in order to give it an effect. Apart from drafting it is
the duty of the state to omit those laws which contradicts the newly adopted
International law.
If a dualist State ratifies a treaty or a convention, but does not create a law
explicitly incorporating the treaty, then their act of non incorporation violates
the International law. If the State has not incorporated the principles of a treaty
as per its local laws which it has ratified earlier in the International sphere then,
neither the citizens of that country can invoke the International laws nor the
courts can give its decisions based on the principles of that treaty.
The United Kingdom is a country in which a dualist approach is dominant.
International law becomes the national law in the UK only if it is translated.
Hersch Lauterpacht on Dualism
Judge Lauterpatch was an advocate of natural law, he accepted that
International law observes the precepts of natural law.
For Lauterpacht, International law is more superior than municipal law, the
rationale behind this view is because it offers the guarantee rights for the
individuals notwithstanding anything from which state he belongs to. As per
Lauterpacht the hierarchy of legal orders was:
1. Natural law
2. International law
3. Municipal law
For him whether it is International law or Municipal law, it is the individual who
is the definitive unit of all law. He answered a few fundamental questions of
international law philosophy regarding the concept and origin of international
law.
He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal
obligation, meanwhile agreeing with Kelsen that the binding force of law cannot
be derived from the individual or common will of the states.
For Lauterpacht, the international law is for the states and not for governments.
For him, the international community was a community of individuals, whose
will is expressed by the states.
Triepel on dualism
Triepel treated the two systems of State law and International law as entirely
distinct in nature. For him the International and Municipal law exist as two
separated, distinct sets.
Triepel made following contentions on the relationship between International
law and state law:
Firstly he contended that International law and Municipal law differ in
the particular social relations that they govern; State law deals with
the individuals and International law regulates the relations between
States.
Secondly, he argues that their juridical origins are different; the source
of Municipal law is the will of the State itself, the source of
International law is the common will of States.
There exist differences in: subjects, sources and content, also, it
requires ‘transformation’ of International law into Municipal law to
make International law binding on Municipal authorities.
Triepel accepted that the basic will of the States was the premise of the
legitimacy of International law; he also pointed out that it is heavily relied upon
the agreements between States, which not only includes treaties but custom too
and the common will was the most important and inventive source of
International law.
The problem of “lex posterior”
In a dualist country, International law must be translated into Municipal law,
and the existing Municipal law which contradicts International law must be
“translated away”. The international law must be translated into municipal law
in order to conform to International law. However, the need for translation
causes a problem with regard to Municipal laws which are developed after
translation.
In a monist country, a law emerges after the International law has been
accepted and if it contradicts the International law, it automatically becomes
null and void. The International rule will continue to prevail.
In a dualist system, when the international law which is translated into a
national law can be overridden by another national law on the principle of “lex
posterior derogat legi priori“, which means: the later law replaces the earlier
one.
This means that a dualist state willingly or unwillingly can violate international
law. A dualist system requires continuous screening of all subsequent national
law for possible incompatibility with earlier international law.
Difference Monism theory and Dualist theory
Monism
1. As per the advocates of natural law, Municipal law and International
Law forms a single legal system.
2. Monism is supported by the advocates of natural law.
3. In Monism there exists no need for translation of International and
Municipal law in order to give it an effect.
4. In a true monisitc country if a national law contradicts International
Law then it becomes null and void.
5. If a monist state ratifies a treaty or a convention, and does not create
a law explicitly incorporating the treaty then their act of non
incorporation will not violate the International Law.
6. In a monistic State International Law automatically gets embedded in
the Municipal law and the contradicting part gets automatically
translated away.
7. Supporters of Monism: kelson.
8. State which follows Monistic approach: germany.