Professional Documents
Culture Documents
SCHOOL OF LAW
INDEX NO
COURSE
INTAKE
2011/AUG/LLB/B9430.
LAW
AUGUST 2011
PROGRAMME
DAY
COURSE UNIT
LAW
PUBLIC
LECTURERS NAME:
KABUGGU
MADAM
QUESTION.1
INTERNATIONAL
JUSTINE
ABBREVIATIONS
ICC
UN
United Nations
AU
African Union
USA
DRC
LRA
ICJ
ICTR
ICTY
NRM
UPC
KAU
IL
International law
ML
Municipal law
ii
ABSTRACT
This easy is basically aimed at highlighting the distinctions between Public International Law
and Municipal Law specifically their definitions and brief historical backgrounds as expressed by
the different scholars and jurists in the two different schools of thoughts such monism and
dualism. And also this essay will mainly be based on research from the different text books, case
law and both international and local legal instruments such as the International Court of Justice
Statute, the Rome Statute, the Genocide Statute, Constitutions and different Acts of Parliament.
This essay goes further to give the distinctions between Public International Law and Municipal
law based mainly on the Dualistic school thought which propounds the idea that these two laws
are distinct, and in proving this, the essay advances a number of points in support of the dualistic
ideology such as the fact that public international law regulates the relations between states
whereas municipal law regulates the relation between individuals, international law is entered in
to by free consent but no consent under municipal law, also this essay advances the difference
that under municipal law ,courts have compulsory jurisdiction while under public international
law jurisdiction only binds member states , further more this essay advances the fact that under
municipal law there is individual responsibility whereas under public international law there is
collective responsibility ,also the distinction that there is a hierarchy of sources of law under
municipal law while such hierarchy does not exist in public international law, also the essay
reflects on the fact that there is political institutionalization under municipal law and the fact that
such institutionalization are non-existent under public international law ,also another distinction
is that there is no standing army under public international law while under municipal law there
standing armies. Finally this essay looks at a few similarities between these two laws and ends
with the conclusion to this essay.
i
INTRODUCTION
International law is the body of rules that nations consider to be binding in their
relations1.International law governs relations between independent states. the rule of law
binding upon states therefore emanates from free will as expressed in conventions (treaties) or
usage (customary state practice) generally accepted as expressing principle of law established in
order to regulate the relations between these co-existing independent communities or with a
view to achievement of common aims.
For one to understand international law its wise for him or her to note that there are basically
two types of international law and they are private international law and public international
law
Private International Law2. Deals with those cases within particular legal systems in which
foreign elements obtrude rising questions as to the application of foreign law or the rule of
foreign courts3. For example, if two English men make a contract in France to sell goods
situated in Paris, an English court would apply French law as regards to the validity of that
contract.
Whereas on the other hands public international law covers the relationship between states
in all myriads forms, from war to satellite and regulates the operation of the many international
institutions, it may be universal or general in which case the stipulated rules behind all the
states or particular all depending upon the nature of the rule or regional , where by a group of
states linked geographically or ideologically may recognize special rules applying to them ,for
example the practice Diplomatic asylum that has developed into its greatest extent in Latin
America.
In my own view I would say public international law is a set of laws , rules and customs
that govern or regulate the political ,social , economic and military relationship between two or
more states, which relationship is entered in to through agreements, treaties or convention
with free consent reached upon by heads of state ,minister, diplomats or any other person(s)
NORTH SEA CONTINENTAL SHELF CASE , ICJ, REPORT 1969 P.44 ,142 P29 AND M AKEHURST
CUSTOM AS A SOURCE OF INTERNATIONAL LAW 47 BYTH 1974 -5 P1
5
10
Though there were some elements of international law in the ancient period going as far back
as the Egypt (paranoiac era), the ancient Greeks and the Roman empire, modern international
law can be traced to the medieval period culminating in the 1648 peace of Westphalia which
2
ended thirty years of the war in Europe and gave rise to the nation state concept. The Dutch
writer, Hugo Grotius was the major contributor to this development and because of his
contribution to the development of modern international law he has been often referred to as
the father of international law, his major contribution to the theory of international law was his
book the law of war and peace. It postulated a voluntary law of nations based on consent and
the territorial norms should be expressly stated in treaties or implicitly drawn from customary
state practice in the international relations.
Although the embryo of international law concept was apparent within the ancient Greek city
states, International law system is a recent as the seventeenth century. modern International law
grew from the rise of secular sovereign states in western Europe, it arose as a means of
regulating the relations of states with each other . the rules of war and those of diplomatic
relations were the earliest expression of international law .the so-called Age of discovery
necessitated the evolution of rules of governing the acquisition of territory and the principle of
freedom of the sea . Thus International law grew out of necessity in response to the need of states
to co-exist, it was largely decided by the main actors on the scene of International activities even
as International law continued to expand with increase in international intercourse, it remained
rooted in the western European tradition for so long time
Essentially the evolution of international law was Eurocentric. this manifested itself in a
series of treaties between European nations which were joined later by the united states of
America eighteenth century and Latin America in the ninetieth century this law centered for the
interest of these nations it led to the congress of Vienna(1814-1815) initially designed to be an
international organization for maintance of peace after the Napoleonic war but which however
was not very successful . the self interest of the then major actors in the international areana
was demonstrated in the infamous Berlin conference of 1884-1885 wherein the western
European powers divided the entire African continent for colonialism ,a practice they legalized
as their civilizing mission international law so conceived suffered major joit in twentieth
century through the horrendous experience of the two world wars and emergence of numerous
new of decolonization, particularly in the sixties and seventies
However the twentieth century witnessed a major change resulting from the two world wars
causing major devastation and breakdown of the colonial system and attainment of independence
by numerous states in Asia and Africa previously denied voice in international affairs. Emphasis
has since shifted from individual action to International Corporation; the use of force, except in
defined circumstance has been prohibited
The most dramatic change has been the expansion of international actors from preserved of
50 states ,which signed the charter or the united nations in san Francisco in 1945 to current
community of some 180 states which have come together for the better of the world and
3
promotion of international relation
In showing the distinction between public international law and municipal law its
indispensable to discuss the main two theories in public international law and municipal
law. These are known as the monism and dualism theories. Monist and dualists hold
diametrically opposite views as discussed below.
Monism was propounded by Kelsen an Austrian jurist and the monist holds a view that
International law and municipal law are concomitant aspects of one legal system. They
contend that International and Municipal law not only resemble each other but, at the same
time spring from a single ground norm or standard which is the fountain head of all laws.
According to them International law and Municipal law mediate or immediately regulates the
conduct of individuals.11
On the other hand the Dualist holds that International law and Municipal law are entirely
distinct legal systems. International law dualists contend has a different character from that of
Municipal law in other words ,international law and municipal law have no relation whatsoever
with each other . In support of their stand, dualists give their reasons which are as follows12
(a). the origin of international law and municipal law are different in as far much as sources of
municipal is the will of the state itself whereas the sources of international law is the common
will (gameinwille)of states
(b). the subjects of municipal law are individuals whereas the subjects of international law
states.
(c) International law and municipal law differs in regards to the subsistence of their law in as
much as municipal law, not above but sovereign state is therefore a weaker law.
Dualists contend that international law cannot be directly applied within the municipal sphere
by a state courts, rules of international law become binding on municipal courts if and only if,
such rules are transformed in to municipal legislation .in other words municipal law
strengthens international law and makes it operative by incorporating it in to national law by
legislation and thereby making international law binds municipal law.
11
12
International laws are governed by treaties which by nature promissory while Municipal laws
are statute which are by nature of command.
4
Its on the dualistic school of thought that I discuss the distinctions between municipal law
and public international law as discussed below
1.In the first place municipal law regulates the relations between people of a particular country
or entity or territorial jurisdiction, for instance when a law is passed by parliament and assented
to by the president such law shall take effect within the boundaries of that country ,it will
regulate the relations between the individuals and individuals(civil cases) or individuals and the
state(in criminal case).While on the other hand international law regulates or governs the
relationship between states ,so when two(bia-laterial) or many countries(muti-latrial) come
together and agree on a particular law or agreement or treaty such agreements as trade
,diplomatic or non aggression agreements, such agreements will be intended to regulate the
relations between those states. For example the East Africa common market protocol is meant to
regulate trade among East African Countries. Also in West Rands Central Gold Mining Co ltd
and Chung Chi Chic hung Vs R .Lord Atkins observed that the courts acknowledge the
existence of a body of rules which nations accept among themselves on any judicial issue they
seek to ascertain what the relevant rule is and having found it, they will treat it as incorporated
in to the domestic laws so far as it is not inconsistent with the rules enacted by statute or finally
declared by the tribunal. This therefore proves that public international law regulates the
relationship among states while municipal law regulates the relations between individual within
the territorial boundaries of a given state hence a distinction between public international law and
municipal law
2. International law is created or reached into based on free consent. a country can decide to
or not to be part of a particular international law or instrument, for instance the United States of
America (USA) played a great rule in the formation of the Rome statute which creates the
International Criminal Court (ICC) but at the end of the day, America opted not to be party to the
statute they did not ratify it. Legally meaning the Rome statute does not apply to America due to
the principle of free consent. The case is different with municipal law, there is nothing like
free consent, once Parliament passes a law and is assented to by the President then it becomes
law binding on all people within that territorial boundary regardless of whether you are a
national or foreigner or citizen or not unless one has particular exceptions such as diplomatic
immunity .so in Municipal law you do not have to consent to a law for it to become binding on
you it binds you automatically while under Public International Law a state has to first consent
whether they should be party to an international law or not hence a distinction between public
international and municipal law
3. Under Municipal law individuals are held liable for their individual crimes or violations of
both civil and criminal law. in this system when a person commits an offence such as murder
(criminal) or breach of contract (civil) cases such person is made personally accountable for his
or her acts or omissions against the other person, and in case of criminal offences which amounts
5
to offences against the state, such a person is made to be individually accountable to the state
hence under municipal law the principle of individual responsibility is exercised. While the
system is very different under Public International Law since a state is made liable to another
state much as the offence against that state could have been committed by personalities of the
accounting state, such personalities are presumed to have acted on behalf their state not in
personal capacity hence the principle of collective state responsibity where the whole state is
collectively held accountable for the acts committed by their representatives in certain countries.
for instance when the Uganda peoples defense forces (UPDF) were alleged and proved that they
had stolen gold and timber in the Democratic Republic of Congo (DRC) during military
missions, Uganda as a whole was held accountable for the acts of their soldiers hence the case of
Democratic Republic of Congo Vs Uganda hence principle of collective responsibility which
brings a distinction between public international and municipal law.
4. Under public international law, which basically relates the relationship between states , there
are no courts with compulsory jurisdiction, its true that under public international law courts
do exists such as the International Criminal Court (Uganda Vs LRA) , the International court
of justice( ICJ) ,and war crimes tribunal such as one set after genocide in Rwanda ( ICTR) and
the international crimes tribunal for former Yugoslavia (ICTY) but it on record that none of these
courts has compulsory to try all cases across the world, their jurisdiction only binds countries
that are members of a particular treaty ,convention or agreement for instance the united states of
America and most Arab countries are not party to the Rome therefore not affected by the
international criminal court (ICC)s jurisdiction. Even the Nuremberg trials did not have
jurisdiction on all countries. But under municipal law courts have jurisdictions to try any
case (jurisdiction over all civil and criminal cases) uniformly, there is no requirement of consent
from any one to have a courts jurisdiction on him or her as seen in sec 14 of the judicature Act
of Uganda which grants unlimited jurisdiction to the High court over all cases within the
territorial boundaries of Uganda as it provides that the high court shall, subject to the
constitution have original unlimited jurisdiction in all matters and as such appellate and
other jurisdiction as may be conferred on it by the constitution or this Act or any other law 13 .
This therefore reflects a distinction between public international law and municipal law since
under municipal law courts have compulsory jurisdiction while under Public international law
court do not such compulsory jurisdiction
13
15
16
18
19
to be bound by it. this however does not mean the duration of usage should be a long one all it
needs is it should have gained acceptance within a particular period, this was expressed in the
popular case of North sea continental shelf case in which it was stated that although the
8
passage of only a short period of time is not necessarily of its self a bar to the formation of a
new rule of customary international law an indispensable requirement would be that within that
period in question ,short though it might be ,state practice should have been both extensive and
virtually uniform in the sense of provision invoked and should moreover have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is invoked21 for
instance from the time the exclusive economic zone was introduced in 197122 and discussed
during the first session of the law of the sea of 1974 ,by 1984 it had become so entrenched that
even the representatives of the united states could assert that the concept had become part of
customary international law .still under customary international law for a rule to be binding and
become law between states there should be persistent state practice in the application of that law
for instance in the Asylum case it was held that before a state practice could be
acknowledged as law , it had to be in accordance with consistent and uniform usage. However
neither duration of usage nor persistent state practice is necessary for a law under
municipal law to gain effect, all it needs is to be enacted by parliament and assented to by
president for it to become law hence and distinction between Public International Law and
Municipal Law
9. Under public international law, its major subjects are states to an extent that individual in
most cases are not held personally accountable for acts done on behalf their country. its the
whole country which is made responsible though of recent ,individuals are being made
accountable for their acts under public international law for instance by the 1980s and 1990s
the Genocide convention held individuals liable directly for acts of Genocide. Article iv of the
genocide convention provides that individuals shall not hide under the veil of the state
consistent with the Nuremberg trials23 this was seen in the case of Bosnia and Herzegovina
Vs Yugoslavia ,Serbia & Montenegro were individual were tried for war crimes and crimes
against humanity also the Rome statute of the International Criminal Court (ICC) currently
trying the Kenyan president and his deputy and also the Lords Resistance Army Commander
Joseph Kony and five others are being tried individually for committing war crimes and crimes
against humanity but the bottom line is that public international law major deals with states
not individuals. However municipal law on the other hand is mainly on individual
21
(ICJ) REPORT(1969) PG 4
22
THE IDEA OF EXCLUSIVE ECONOMIC ZONE WAS FIRST INTRODUCED IN 1971 DURING THE
JULY/AUGUST SESSION OF THE UN PREPARTORY COMMITTEE ON THE SEA BED IN GENEVA AS
DOUCMENT A/A 138 BY KENYA
23
responsibility, the state is not liable in any way for the acts of an individual since individuals
are personally held accountable for their acts .so this shows the distinction between public
international law and municipal law since the latter deals with individuals and former with state.
9
10. Public International law does not have universal jurisdiction and this can be seen in most
of these statutes which create the international courts do not have any provision providing for
universal jurisdiction for instance the genocide statute24 does not have any provisions
providing for universal jurisdiction of the courts and this was also expressed by Van Schaack
1997 who called such conventions and international court statutes the blind spot and
blindness of these spots or lack of universal jurisdiction was seen in the case of Attonery
General of Isreal Vs Eichmann (1961)25 in which Adolf Eichmann had to be kidnapped by
Israel operatives from Argentina and brought to isreal for trial and subsequent execution as an
alternative for universal jurisdiction since the international court had not provided for
universal jurisdiction and Argentina therefore did not have jurisdiction. However under
municipal law the courts have universal jurisdiction or national jurisdiction for instance the high
court under sec 14 of judicature Act has jurisdiction to try all case within the territorial
jurisdiction of Uganda hence a distinction between public international law and municipal law.
11. Another distinction between public International law and municipal law is that for
public international law to exist between states, state must recognize the other state to be in
existence of which failure for a state to accept the existence of another state there can be no
international law or relations between those states for example Haiti (1991-94) and sierra Leone
(1997-98) where most African countries such as Nigeria ,Liberia, and South Africa refused to
recognize the new military government of sierra Leone and therefore there was not international
relations between sierra Leone and these states also Kenya and Tanzania refused to recognize
the government of Amin based on the grounds of illegitimacy and did not accept Amin as the
new president Uganda and this frastrusated the international relations between Uganda and the
other East African states .much as these non-recognitions based on illegitimacy has also been
challenged as unrealistic as it was seen in the case of Tinoco Arbitration , were William
Horward Tofi famously held that non-recognition of governments on grounds of illegitimacy
was a postulate of international law and did not secure general acquiesance. The bottom line
still remains that the failure for states to recognize the existence of another state or government
breaks international law between those states. However under municipal law there is no need
for recognition for municipal law to be effective once enacted or passed by parliament it
becomes law binding on all citizens, nationals and all people within the territorial jurisdiction of
that state regardless of whether the individual accepts or recognizes the law or not .so this is also
a distinction between international law and municipal law.
24
GENOCIDE STATUTE
25
12. For public international law to be operational in the domestic jurisdiction of state ,it
must have been ratified or domesticated or alternatively incorporated in to municipal law, all
10
treaties or conventions do not automatically come in to force in a member countries ,they have
to first get parliamentary approval through enabling Acts of parliament and presidential
assent to that extent treaties which are part of international law do not Ipso facto become the
law of the land unless expressly adopted or incorporated by parliament through legislation to
make them part of the law of that state , for instance Uganda ratified the Rome statute in 2002
making Uganda party to the International Criminal Court, and also the amnesty convention was
domesticated in Uganda through the amnesty Act hence incorporation in Ugandan domestic
legislation. also in R Vs Keyn(the Francona) it was held that English courts had no
jurisdiction over crimes committed by foreigners within the Maritime belt extending to three
miles from the English coast , although it was claimed that such jurisdiction belonged to them
under the international law, in other words the decision pointed out that customary rules of
international law could never be applied by British Municipal court unless they had been
embodied in a British statute. but there are some provisions of international treaties that are
self executing and may not need ratification or incorporation but take effect automatically .this
was seen in the case of Sei fuji Vs the state of California26 were it was held that the UN
Charter provision on human rights was not self executing (article 55-56) 27 but provision relating
to the privileges and immunities of UN (article 104-105) were self executing and was the same
stand in the case of people of Saipan ex rel Guerrero Vs United state Ministry of interior 28.
However the story is different with municipal law since there is no ratification or
incorporation the law goes through parliament and assent by the president in order to become
municipal law so this is also a distinction since whereas there is ratification in public
international law such is not needed in municipal law.
13. Under municipal law the legal system(law) is uniform or universal in that the whole state
is subject to that particular law, for instance if rape, murder, prostitution or adultery is an offence
in one part of the state then its an offence statewide not other parts subject to the law while
others are not .But on other hand under public international law the legal system is not
uniform or universal , since not all states are affected or subject to a particular law a case in
point is the united states of America and most Arab countries are not party to the Rome statute .in
simple terms international law binds only member states hence a distinction with municipal law
which is uniform.
26
27
UN CHARTER
28
14. Under public international law there is no central authority .that is to mean there is no
authority that holds power over all states. For instance there is no single President that has
control over all states nor is there a Parliament or Judiciary that has authority over the entire
universe not even the United Nations Secretary General, Pope or US President who are
considered the powerful people in the world have power over all other states since each state is
sovereign. And not even the United Nations General Assembly nor Security Council has power
like that of the Parliament in Municipal Law which make laws that uniformly bind the entire
state. However the situation is different under municipal law since under municipal law there
is exercise of central authority with a President as the head of state, Parliament as the law
making body, Judiciary with compulsory jurisdiction over all cases in the territorial boundaries
of the state .hence showing a distinction between municipal law and public international law.
15. Public international law also differs from municipal law in that under public international
law there is no single standing army, police or prison force not even the united nations peace
keeping missions is a single standing army since states have to collectively bring soldiers to take
part in such peace keeping mission and the same is the case with police ,there is no single
standing police force for the whole world not even Interpol has authority or jurisdiction over all
countries as an international police they only coordinate among willing states and this has for
long brought difficulties in the implementation of public international law, a case in is when it
comes to arresting war criminals to be tried the international courts there will be no enforcement
mechanism. However under municipal law there are always a strong and standing armed
force such as the army, prison and police belonging to the state and have full authority in all
parts of the state .hence a distinction between public international law and municipal law .
HOWEVER. To a very small extent municipal law and public international law are not
completely different since both laws provide for individual responsibility. For instance the ICC
and Penal codes provide for punishment of individual who violate the different laws
Then also the two laws supplement each other for instance for international to be effective it
must be domesticated in to the municipal law of a particular state e.g. the Amnesty convention
had to domesticated in to the Amnesty Act which is a municipal instrument also its through
international statutes that countries have used to enact their domestic laws a case is the universal
declaration of Human rights of 1948 that most countries have enacted the bill of rights in
their constitutions for instance chapter 4 of the Ugandan and Kenya constitutions provide for
the bill of rights which was an international law declaration so both types of law supplement
each other meaning they are not completely divorced from each other
CONCLUSION.
In conclusion International Law is a branch of law which relates the relationship between states but many
jurists still doubts if this breach of Law does exist in reality since states are free to decide or consent
whether or not they are to be part of the law , also the difficulty in the enforcement mechanism has made
many people to doubt whether this breach of law is a reality for instance the International criminal court
does not have the mechanism to arrest the criminals who commit war crimes and crimes against
humanity hence leaving it at the marcy of individual state to arrest and hand over the criminal so to an
extent municipal law is more effective compared to public international law .
REFERENCES
TEXT BOOKS
9. STATUTES
10. UN CHARTER
11. VIENNA CONVENTION ON TREATIES 1969
TABLE OF CASES
3. WEST RANDS CENTRAL GOLD MINING CO LTD AND CHUNG CHI CHIC HUNG
VS R
5. UGANDA VS LRA
8. ASYLUM CASE
TABLE OF CONTENTS
PAGE
(a).Abstract.(i)
(b).Abbreviations (ii)
(c).Table of cases (iii)
( d ).Introduction1
(e).Private international law..1
(f).Public international law1
(g).Municipal law2
(h).Origin of international law2
(i).Monism4
(j).Dualism4
Points
1. Regulation of relations between states under public international & individuals5
2. Free consent under public international law. No consent under municipal law5
3. Individual liability under municipal law. Collective responsibility under international law5
4. Compulsory jurisdiction under municipal law .no compulsory jurisdiction under municipal6
5. Institutionalization of power6
6. Hierarchy of sources7
7. Creation of laws through treaties................................8
8. Duration of usage8
9. Subjects of international law and municipal law9
10. No central authority under public international law.9
11. Recognition by states...10