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International Law and its relation with Municipal Law

By: Saeed Kakeyi

July 01, 2007

This assay will explore definitions of the International Law (IL), how it has developed and
compares it with Municipal Law (ML).

Introduction
The rules and disciplines of IL date back to the Romans. However, modern IL can be traced
back to the Westphalia peace which set the time for the era of nation-states. This “civilized”
era is in constant search for international norms in which can facilitate and preserve peace and
economic prosperity among nations with various needs and interests in the absent of a “world
government.” In such anarchy, an unbalanced IL became the needed tool to regulate and
govern international relations. But, how an unbalanced IL can form an authority by which all
states bind their activities with? In a limited scope, this assay tries to address this question by
looking through the unmatched lenses of IL and ML.

Definitions and brief historical developments of IL

There exist several definitions for IL. The very first legal definition of IL was spelled out in
1927 by the Permanent Court of International Justice (PCIJ), the judicial branch of the League
of Nations, in the case of the S.S. Lotus (France v. Turkey) as follows:

“International law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims” (Caron 2006, I-6).

It can be said, therefore, that upon this definition, the classic reframing of IL comes
from J.L. Brierly’s “The Law of Nations: An Introduction to the International Law of Peace”
(6th ed. 1963), as “the body of rules and principles of action which are binding upon civilized
states in their relations with one another” (Tackling the Best: Lecture 01, 1).

From these two definitions, one can easily establish the fact that IL is based and
developed within the modern western norms and rules of nation-states’ systems with a history
dates back to some thirty eight decades ago when Hugo Grotius wrote his “The Law of War
and Peace” masterpiece. However, this is not to say that IL is a purely western discipline.
Rather, the roots of IL date back to the Babylonian era—Codes of Hammurabi, some 3700
years ago. These 282 codes include economic provisions (tariffs, trade, and commerce),
criminal law, family law and civil law. However, the Romans knew of a jus gentium—a law
of nations—which can be considered as the best international law of its time (Janis and
Noyes: 2006, 1)
Needless to add more herein, and as Ku and Deihl are noting in their International Law:
Classic and Contemporary Readings, these norms formulated into a normative system and the
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rules became knowing as the operating system, and together, formed a “dual character” for IL
as a result of the 1648 Westphalian War legacy “in which law functions between, rather than
above, states” (2003, 3).
This functionality tells us that IL is the set of rules and disciplines created by the mutual
consent of states to regulate their conducts in anarchic and non-institutionalized international
relations. Yet, because of the complexity of international relations, IL has gone through some
complex practices since the end of World War II. With the foundation of the United Nations
(UN) and the formations of its various non-state organizations, the definition of IL has
undergone changes to read as:

“the set of rules that governs the relations between nation states,
nongovernmental international organizations, and, in some situations, between
individuals” (Caron: 2006 , 01).

Thus, not only nation states are subjects of IL, but also expanded rapidly to recognize
intergovernmental international organizations and even—to a more limited scope—
individuals which are becoming subjects to international obligations under international
criminal law, and granting them international rights under human rights law (Buergrnthal and
Murphy: 2007, 2).

Public International Law

In light of the aforementioned expansion, IL needed to be reframed appropriately.
Accordingly, IL became formally known as “Public International Law,” dealing with
conducts beyond borders of sovereign states in relations to other sovereign states. As for the
issues and matters of individuals, corporations and other private entities when they crossed
national borders, the term of “Private International Law” was created to handle their interests
according to the best alternative domestic laws of nations, in which they have business with,
available to them (Lecture 01: 2). Insofar, private international law has grown into a large
legal spectrum through multinational conventions, contracts, protocols and memorandums of
understanding on matters of commercial, social and cultural.
However, in order to have coherent international relations, Public International Law
defines the legitimacy of any existing or newly formed states. This is to frame their
international agreements according to their diplomatic relations. Furthermore, it regulates
international commerce, governs human rights and creates rules for preserve our ecological
system (Lecture 01: 2).

How IL applied and executed?

The UN’s the International Court of Justice (ICJ), as an example, is the organization which
has the judicial capacity in providing opinions on matters brought to it upon the consent of the
disputing parties which are actually members of the UN. From such a process, one can
appreciate the fact that there exists no “world government,” and, therefore, the rules and the
resolutions of UN bodies are not binding except upon its members (Lecture 01: 2).
Therefore, unless an entity is consenting to a legal practice, no rules or disciplines can
be applied to its international activities. Thus, it is very important to understand how consent
is governed and by what means or sources.
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Sources of IL
IL usually drives from three sources: treaties, customary international law and general
principles of law organized by civilized nations (2007: 19-20).
Treaties are conventional agreements, protocols or accords between and among
nations or international organizations and are the primary basis for binding rules of IL.
Treaties bind only those nations that have agreed to abide by the terms of the treaty.
Accordingly, it is necessary to determine what countries are parties to treaties (2007: 20-21).
Customary international law is found by examining regular and accepted conducts
among nations. Instead of deriving from formal conventions, customary law arises from
widespread international practice carried out in the belief that such conduct is required by IL
(2007: 21-23).
General principles of law recognized by civilized nations are those principles which
used in the domestic law of most nations (Lecture 01: 5). However, customary international
law and general principles of law recognized by civilized nations apply to all nations with one
exception: customary international law does not apply to any nation that has determinedly
objected to the rule during its making.
It is worth mentioning here that under some circumstances, the UN’s Security Council
and the UN’s General Assembly may contribute to IL. Legal opinions of courts interpreting
and applying IL, such as prize courts, the European Court of Human Rights (EUHR), and the
writings of scholars can be authenticated as IL.

IL and ML
States occasionally argue about conflicting rules and regulations of IL with those of
their ML and, therefore, they should be excused from IL obligations on the grounds that their
internal laws do not authorize them to such fulfillments and that IL is stepping into domestic
jurisdictions over which it does not control. Thus, article 27 of the 1969 Vienna Convention
on the Law of Treaties (VCLT), sub-headed as “Internal law and observance of treaties”
stipulates the followings:
“A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to article 46” (2006: 934).

But what is it in VCLT’s article 46 which article 27 is ruling on? The answer to this
question can be found in the text of article 46 which is titled as “Provisions of internal law
regarding competence to conclude treaties” states that;

“1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and in good faith”
(2006: 940).

As it is evident in section 1 of the above quoted article, there is only one single
exception by which a state can express its well not to be bound by a treaty if it was a manifest
violation of a “rule of its internal law of fundamental importance.”
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Consequently, this can be seen as a clear conflict between IL and ML, on the one
hand, and it is a vigorous competition between the effectiveness of the first two main sources
of IL; treaties and customary international law, on the other hand. Treaties, as defined by
article (2), section (1), subsection (a) of VCLT “excludes” ML as a mean for international
agreements (2006: 926). Whereas customary international law is almost purely depends on
ML which includes law at all authoritative governing levels of national, state, provincial,
territorial, regional and local.
This confliction, competition and dependency results in a wondering question about
the very nature of IL; whether it is a “Law” or not? If IL is a law, why then parties consenting
to it be given the rights of reservation as is the case with the most Islamic states in their
signing of the Universal Declaration of Human Rights (UNDHR)? Yet, if IL is not a law, how
can international relations are governed in a peaceful coherent manner? Such questions will
remain unanswered due to the limited range of this assay

Reference:

1. Caron, David (2006), the Lotus Case and the Nature of International Law. Retrieved
July 1, 2007, from ChapterOne Web site:
http://www.law.berkeley.edu/faculty/ddcaron/Public_Website/Courses/International
%20Law/2006%20Spring%20IL/2006%20IL%20%20Handout%20on%20Lotus
%20Case.doc

2. Lecture 01: Tackling the Best.

3. Janis, M, & Noyes, J (3rd ed., 2006). International Law: Cases and Commentary. 3rd
ed. St. Paul: Thomson West.

4. Ku, C., & Diehl, P. (2nd ed., 2003). International law: Classic contemporary readings.
Boulder, Colorado: Lynne Rienner Publishers, Inc.

5. Buergenthal, T., & Murphy, S. (4th ed. 2007). Public international law. St. Paul, MN:
Thomson West.