Overview Similarities and Differences between InternLaw : An Overview Sssimi

SIMILARITIES AND DIFFERENCES BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

SIMILARITIES AND DIFFERENCES BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

KARAN SHETTY 01/11/11

INTRODUCTION
Law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. In matters of world-wide concern, it is international law that determines the responsibilities and obligations of each State, organisation or individual. In the past 50 years, the world has become even more interconnected with the huge leaps in communication and technology, and a growing dependency on other countries for resources and services. International law is both necessary and important for international cooperation at every level. International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform. The term "international law" can refer to three distinct legal disciplines:

Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law and the laws of war or international humanitarian law. Private international law, or conflict of laws, is a body of law developed to resolve private, non-state disputes involving more than one jurisdiction or one foreign law element. which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
Page 1

Karan Shetty

Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

jus gentium : is the body of treaties, U.N. conventions, and other international agreements [law of nations] Law is common to all nations jus inter gentes: agreements between nations

Sources of International Law

It is generally accepted that Article 38 of the Statute of the International Court of Justice is a complete statement of the sources of international law. Article 38 describes the following four sources:

1. INTERNATIONAL CONVENTIONS AND TREATIES The Vienna Convention on the Law of Treaties (1969) describes treaties as international, written agreements made between States that are governed by international law. The term, treaty, includes arrangements, protocols, covenants, conventions and agreements. Every treaty acts in the same manner as a contract between all the parties signing the treaty. Being a written contract, States that are party to a treaty can identify what has been agreed and what obligations are owed by each party and to whom. Treaties between two States are referred to as bilateral or bipartite treaties while treaties between more than two States are referred to as multilateral or multipartite treaties the treaties which have attracted the largest numbers of parties are called universal.
Karan Shetty Page 2

Only States and international organisations may become parties to international treaties. As a corollary to this, treaties apply in the first place to States and to State policy. A State may be able to modify its obligations under a treaty by making a reservation at the time it signs, ratifies, accepts, approves or accedes to a treaty. The Vienna Convention which consists of 85 articles, eight parts and an annex includes and materializes five fundamental legal principles

Free consent and good faith (bona fide in Latin) are the leading principles which ought to be always followed by States in the course of their relations with one another The other major principles which also emanate from the Roman Law tradition apply in particular - pacta sunt servanda [Latin, Promises must be kept.] An expression signifying that the agreements and stipulations of the parties to a contract must be observed. - omnia conventio intelligitur rebus sic stantibus (Latin "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. - favor contractus (it is better to seek the maintenance rather than the termination of a treaty)

2. CUSTOM Customary international law is not initially written down as law but develops into law with practice over time and it describes general
Karan Shetty Page 3

practices accepted as law by States. The development of customary international law is an ongoing process, making it more flexible than law contained in treaties. The task of identifying or describing customary international law, involves consideration of the following elements: the degree of consistency and uniformity of the practice; the generality and duration of the practice; the interests of specially affected States; and the degree to which the States who adopt the practice do so from a recognition that the practice is required by, or consistent with prevailing international law. The shorthand for the belief that the practice is required by law is opinion juris et necessitates, Latin phrase.. This last element requiring the belief that something is legally obligated sets it apart from other behaviours between States which are merely due to courtesy, tradition or convenience. Jus cogens International law also contains certain rules referred to as jus cogens or peremptory norms. These norms reflect law that is so fundamental that no State can ignore it or attempt to contract out of it by a subsequent treaty. Jus cogens has been called the public policy of international law. The Vienna Convention on the Law of Treaties defines peremptory norms as those norms accepted and recognised by the international community of States as a whole and from which no derogation is permitted and can only be modified by a subsequent norm of international law having the same character. The norms generally accepted as being jus cogens are genocide, piracy, slavery, and torture. In principle, all States are prohibited from these actions; in practice, this is the world that is aspired to. Jus cogens in Latin this means compelling law and refers to so called peremptory norms of general international law. 3. GENERAL PRINCIPLES OF LAW

Karan Shetty

Page 4

The International Court of Justice ( ICJ) is directed to consider the general principles of law recognised by civilised nations in its decision making: the ICJ use methods and doctrines of domestic legal decision making to the extent that they are useful in addressing the questions before the Court, to develop an international judicial method. The preferable view seems to be that international tribunals use domestic law selectively where situations are comparable to make the administration of international law work. 4. JUDICIAL DECISIONS AND WRITINGS OF PUBLICISTS The Statute of the International Court of Justice says that the Court shall apply judicial decisions and the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law: The International Court of Justice (ICJ) is the main court of the UN and its decisions identify and articulate international law rules based on treaty, custom, general principles of law, judicial decisions of international and national courts and tribunals, and the writings of jurists.

MUNICIPAL LAW
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law. Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations
Karan Shetty Page 5

under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.

RELATIONSHIP BETWEEN INTERNATIONAL AND MUNICIPAL LAW

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law. Monism In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system. Dualism This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations. The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign
Karan Shetty Page 6

or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government. Harmonisation Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations

DIFFERENCE BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

International law is concerned with the rights and duties of States in their relations with each other and with international organisations. Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State. International law differs from domestic law in two central respects: 1. The law-making process There is no supreme law-making body in international law. Treaties are negotiated between States on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the United Nations is not a law-making body, and so its resolutions are not legally binding. However, UN Security Council resolutions to take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States. In Australia, domestic law is parliaments of the Commonwealth, states and territories, and by common law principles developed by the courts. Parliaments are the supreme law making bodies with power to make the laws, while courts are empowered to interpret the law and apply it to individual cases.
Karan Shetty Page 7

2. Enforcement International law has no international police force to oversee obedience to the international legal standards to which States agree or that develop as international standards of behaviour. Similarly, there is no compulsory enforcement mechanism for the settlement of disputes. However, there are an increasing number of specialised courts, tribunals and treaty monitoring bodies as well as an International Court of Justice. National laws and courts are often an important means through which international law is implemented in practice. In some instances, the Security Council can authorise the use of coercive economic sanctions or even armed force. For example, in 1990 91 when Iraq invaded and occupied Kuwait the international community used armed force to enforce international law (resolutions of the Security Council). Subsequent controversy about the use of armed force against Iraq highlights how difficult it can be to obtain the necessary authorisation from the Security Council under the United Nations Charter. In international law, that is the only legitimate way that collective armed force can be used.

There are key substantive differences between international law and municipal law
INTERNATIONALLAW MUNICIPAL LAW

International law is horizontal - Municipal law is hierarchical or all states are sovereign and equal vertical - the legislature is in a position of supremacy and enacts binding legislation Adopted by states as a common Issued by a particular political rule of actions among themselves superior for the observance of of those under the authority within a
Karan Shetty Page 8

state Derived from customs and Enactment from the law-making traditions, international body authority dimensions, general principles including treaties Governs the relationship between Governs the relationship between and among states the individuals and the state If there is a violation of a Produces collective liability in municipal law, the aggrieved case of violations and sanctions party will avail administrative and are for the state itself judicial processes within the state. Entails individual liability

What are similarities between Domestic Law and International Law?

Domestic law is the statutes and (to a lesser degree) regulations of a particular country which explain how to interpret the statutes of that country or its subdivisions. International law is what is called a "treaty," and usually does not directly create a crime or create or prohibit anything by individuals. Instead a treaty or "international law" sets an obligation of a country that is a signatory to the treaty to make a domestic law which does something related to that treaty. This can make certain actions illegal, prohibit or require something to be done, or set standards for certain practices. Typically, violation of international law carries no penalties; it is only the domestic law of the jurisdiction where the person is from (if they are outside of a country) or the jurisdiction where the act was committed that determines whether a crime was or was not committed.

Aviation Law
Karan Shetty Page 9

Aviation Law is a highly specialized field of law encompassing most facets of air travel, as well as the operation and regulation of business issues relating to air travel, which requires a comprehensive knowledge of FAA regulations, specific laws regarding flight, and an in depth understanding of aviation. Aviation law pertains to nearly all individuals connected to the operation and maintenance of aircraft. Most aspects of aviation law fall under the oversight of the Federal Aviation Administration (FAA). Although, air traffic regulation polices, laws and administrative agencies have been created by both federal and state government, with certain restrictions preventing states from regulating routes, services, or the rates of all air carriers authorized to provide interstate air transportation by the Federal Aviation Act. States may alter existing remedies and enact state laws consistent with federal mandate, Additionally, Federal law does not prompt state products liability law, and more often, aviation manufacturers may be held strictly liable.

ABA Forum on Air and Space Law The Forum on Air and Space Law is the link to vital and timely information in the aviation arena. This forum represents all areas of air and space law including airlines, airports, labour, financial communities, the FAA, DOT, NASA, litigation and antitrust areas.

Air Transportation Regulatory Reform Act of 1978 An Act to amend the Federal Aviation Act of 1958, to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and price of air services, and for other purposes.

Airport and Airway Development Act of 1970

Karan Shetty

Page 10

The Secretary shall take affirmative action to assure that no person shall, on the grounds of race, creed, colour, national origin, or sex, be excluded from participating in any activity conducted with funds received from any grant made under this title.

Aviation and Transportation Security Act of 2001 The Transportation Security Administration shall be an administration of the Department of Transportation. The head of the Administration shall be the Under Secretary of Transportation for Security. The Under Secretary shall be appointed by the President, by and with the advice and consent of the Senate.

Civil Aeronautics Act of 1938 Under the Civil Aeronautics Act (52 Stat. 973), June 23, 1938, as modified by Reorganization Plans Nos. III and IV of 1940; and as redefined by the Federal Aviation Act of 1958 (72 Stat. 731), August, 23, 1958, promoted and regulated the civil air industry within the United States and between the United States and foreign countries in the interest of the foreign and domestic commerce of the United States, the postal service, and the national defence.

Federal Aviation Act of 1958 Federal Aviation Act of 1958, as amended, involving an amount in controversy in excess of $50,000; an in rem action; seizure of aircraft; or injunctive relief and whose mission is to provide the safest, most efficient aerospace system in the world.

Karan Shetty

Page 11

Aviation Law - International

Australian Aviation Policy & Regulation The primary role of the Aviation and Airports Division is to advise the Government on the policy and regulatory framework for the Australian aviation and airports industries. The Division manages the continuing relationship between the Government and the Civil Aviation Safety Authority (CASA), Air services Australia (Air services) and Australia's airlines. It also manages Australia's participation in the work of the International Civil Aviation Organisation (ICAO) and provides the secretariat for the International Air Services Commission (IASC). Aviation Regulations & EU Air Transport Policy (Code 11) The objectives are: * Understand how air transportation is being transformed by market economies, liberalization of air routes, technological changes, commercialization of aviation activities as well as by the EU air transport framework. Canadian Aviation Regulations (CARs) The Canadian Aviation Regulations are a compilation of regulatory requirements designed to enhance safety and the competitiveness of the Canadian aviation industry. They correspond to the broad areas of aviation which Transport Canada, Civil Aviation is mandated to regulate (e.g. personnel licensing, airworthiness, commercial air services, etc.). Civil Aviation Authority (CAA) in the United Kingdom These directions are hereby given to the Civil Aviation Authority ("the CAA") by the Secretary of State for the Environment, Transport and the Regions in exercise of the powers conferred by Section 66(1) of the Transport Act 2000 ("the Act").
Karan Shetty Page 12

These directions are given in respect of that airspace comprising all airspace of the United Kingdom and all airspace outside the United Kingdom for which the Government of the United Kingdom has assumed responsibility under international arrangements (together "UK airspace"). Convention for the Unification of Certain Rules for International Carriage by Air This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. Ireland Aviation Regulation & International Relations Division Functions: 1. Developing policies for the Irish aviation sector that maximise its contribution to the economy, in addition to developing aviation sector safety and environment policies. 2. Facilitating and encouraging as wide a range as possible of reliable, regular and competitive commercial air services for Irish tourism, trade and industry. 3. Representing Irelands position in Brussels in the formulation of EU aviation legislation and policy. The Division also transposes EU Regulations and Directives into Irish law, implements International Aviation Conventions, and formulates policy in response to developments in international aviation; 4. Administering and issuing authorisations and traffic rights for commercial civil aviation flights into and out of Ireland, including the granting of exemption from the prohibition on the carriage of munitions of war and dangerous goods; 5. Administration of existing bilateral Air Service Agreements with Non-EU third countries. 6. Liaising with the Irish Aviation Authority on aviation safety and a range of other issues.

Karan Shetty

Page 13

 UK Civil Aviation Authority The Civil Aviation Authority (CAA), which is a public corporation, was established by Parliament in 1972 as an independent specialist aviation regulator and provider of air traffic services. The CAA is the UK's independent specialist aviation regulator. Its activities include economic regulation, airspace policy, safety regulation and consumer protection. The UK Government requires that the CAAs costs are met entirely from its charges on those whom it regulates. Unlike many other countries, there is no direct Government funding of the CAAs work.

Aerospace Law
Aerospace or Space Law is a highly specialized area of law and deals with international agreements as well as national policies regarding the use of outer space by all nations including treaties regarding the International Space Station and Liability in Outer Space Aerospace Law - International

Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space

The Agreement entered into force in December 1968. The Agreement, elaborating on elements of articles 5 and 8 of the Outer Space Treaty, provides that States shall take all possible steps to rescue and assist astronauts in distress and promptly return them to the launching State, and that States shall, provide assistance to launching States in recovering space objects that return to Earth outside the territory of the Launching State.

Karan Shetty

Page 14

Convention on International Liability for Damage Caused by Space Objects The Convention entered into force in September 1972. Elaborating on Article 7 of the Outer Space Treaty, the Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Convention also provides for procedures for the settlement of claims for damages.

Convention on Registration of Objects Launched into Outer Space The Convention was opened for signature on 14 January 1975 and it accounts the report of the Committee on the Pacific Uses of Outer Space

Outer Space Treaty The Treaty was largely based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which had been adopted by the General Assembly in its resolution 1962 (XVIII) in 1963, but added a few new provisions

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, which is usually called the Outer Space Treaty, is one of the most significant law-making treaties concluded in the second half of the twentieth century. It was adopted by the United Nations General Assembly on 19 December 1966.

Karan Shetty

Page 15

Aviation Accident Law - Aircraft Injury Law

Aviation Safety Laws cover a broad spectrum of issues including airline liability, pilot certifications, airworthiness of aircrafts and product liability to name a few. Aviation Accidents are investigated by the National Transportation Safety Board (NTSB)

Warsaw Convention - Airline Liability

The first international convention pertaining to liability in international air transportation, the Convention prescribes rules for air carrier liability in case of death or injury to passengers, destruction, loss or damage to baggage, and losses resulting from delay of passengers, baggage and cargo. Liability limits set by the Convention were raised in 1955 by the Hague Protocol to the Warsaw Convention. In particular, the Warsaw Convention:

mandates carriers to issue passenger tickets; requires carriers to issue baggage checks for checked luggage; creates a limitation period of 2 years within which a claim must be brought (Article 29); and limits a carrier's liability to at most: o 250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury; o 17 SDR per kilogram for checked luggage and cargo, or $20USD per kilogram for non-signatories of the amended Montreal Protocols. o 5,000 Francs or 332 SDR for the hand luggage of a traveller

Karan Shetty

Page 16

Montreal Convention

The Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air, is a treaty adopted by a Diplomatic meeting of ICAO member states in 1999. It amended important provisions of the Warsaw Convention's regime concerning compensation for the victims of air disasters. The Convention re-establishes urgently needed uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo. It protects passengers by introducing a two-tier liability system and by facilitating the swift recovery of proven damages without the need for lengthy litigation.

National Transportation Safety Board Reauthorization Act of 2010

A bill to amend title 49, United States Code, to authorize appropriations for the National Transportation Safety Board for fiscal years 2011 and 2012, and for other purposes.

National Transportation Safety Board

The National Transportation Safety Board (NTSB) is an independent U.S. Government investigative agency responsible for civil transportation accident investigation. In this role, the NTSB investigates and reports on aviation accidents and incidents, certain types of highway crashes, ship and marine accidents, pipeline incidents and railroad accidents. When requested, the NTSB will assist the military with accident investigation

Karan Shetty

Page 17

 Aviation Safety Action Program The goal of the Aviation Safety Action Program (ASAP) is to enhance aviation safety through the prevention of accidents and incidents. Its focus is to encourage voluntary reporting of safety issues and events that come to the attention of employees of certain certificate holders.

Lawyer Pilots Bar Association Lawyer Pilots Bar Association is an international non-profit association of individuals who share a common interest in aviation, aviation safety and the law.

Aviation laws in India and world

Worlds aviation industry is primarily regulated by rules and laws formulated by the procedure of international treaty and convention. Most of these can be found in the Annexes and Docs. All ICAO member states being sovereign nations, have the prerogative of making their own laws and rules, which have to be notified by them in ICAOs Aeronautical Information Publication and thus inform the organisation on the differences made.

Aviation Laws Specific to India

Aircraft Act 1934: This is an act to make better provisions for the control of the manufacture, possession, use, operation, sale, import and export of aircraft. Aircraft Rules 1937: Indian Government has made as many as 161 rules covering different aviation aspects including about definitions, appeals, smoking in aircraft, tariff charges and about the aircraft registered in or belonging to foreign state.
Karan Shetty Page 18

Mangalore Air INDIA Express Crash The crash of a passenger aircraft at Mangalore on 22 May 2010 resulted in the loss of 158 lives. This accident was the third deadliest aviation disaster in India. the Civil Aviation Ministry advised that the Airline will provide up to 72 lakh (US$146,020) to family members of each victim as per the provisions of the Indian Carriage by Air (Amendment) Act 2009, which follows the Montreal Convention which imposes on Air India a minimum liability of one lakh Special Drawing Rights (equivalent to Rs70 lakh) per passenger in the event of death in an air accident. SDR is a special currency issued by International Monetary Fund to which India was a signatory. This incident is a very good example of how international law has been accepted interpreted and executed in a municipal court of a sovereign state thus emphasising on the importance of international law and its co existence among municipal law.

Conclusion
The practise of states regarding the relationship of international law and municipal law is divergent. Application of international law depends largely upon the legislature as well as the judiciary of the state. They are expected to take cognizance and endeavour to honour the international obligations of the state. It has to be realised by them that neither municipal law nor international law is supreme, but they are concordant to each other. They both have been made to solve problems of human beings in different areas and hence in my opinion should be given equal standing in all proceedings of justice.

Karan Shetty

Page 19

Bibliography http://www.shvoong.com http://www.britannica.com http://en.wikipedia.org http://www.law.cornell.edu http://www.public-international-law.net http://lawcommissionofindia.nic.in/ http://www.mcgill.com http://www.hindustantimes.com http://www.ibef.org http://the-beacon.info http://www.air.flyingway.com http://www.pgdalatm.nalsar.ac.in

Airport management world class& beyond

Karan Shetty

Page 20