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WHO AND WHAT ARE SUBJECTS OF INTERNATIONAL LAW

Introduction

A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level. Traditionally, States have been the only subjects or persons of International Law. However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities. Thus, international organizations become subjects or persons of International Law. Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality. Special international status was granted to the Holly See and the Vatican City, and the Sovereign Order of Malta. Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law.

These persons and subjects of International Law are discussed in the following.

States

States are the original and major subjects of International Law. Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality.

International Law is primarily concerned with the rights, duties and interests of States. Normally the rules of conducts that International Law prescribes are rules which States are to observe.

Since a State is the primary concern of International Law, it is necessary to study it in a separate posts. Thus, the next post of this series is devoted to the study of a State as a subject of International Law.

International Organizations

An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries. It is for certain purposes a subject of International Law.

The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law. International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties. Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.

International organizations include universal all purposes organizations, universal functional organizations, and regional organizations. Generally, the treaty creating a public international organization indicates its nature, purposes and powers. The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it. The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations. The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level. Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice. In its advisory opinion in the Reparation for InjuriesCase of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State. The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court. Such capacity to perform legal acts is a prerequisite of international legal personality.

In reality, international organizations have exercised their legal capacity in a great variety of ways. They have concluded treaties, created military forces, convened international conferences, and brought claims against States.

Non-State Entities

There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law. Such entities have certain rights and duties under International Law. They can participate in international conferences and enter into treaty relations.

However, the rights and duties of these entities in International Law are not the same as those of the States. They have a sort of international personality. The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform.

These entities fall into the following categories:

Members of composed States or federal States:

The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane. Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice. The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States. State practice has granted international personality to certain component units of the federation. For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality. Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.

Insurgents and Belligerents:

Insurgents are individuals who participate in an insurrection (rebellion) against their government. Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war. For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de facto governments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents. They are bound by the rules of International Law with respect to the conduct of hostilities.

National liberation movements:

In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements. In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations. The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.

International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties. The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.

International territories:

The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements. The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence. The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions. Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).

The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law. Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence. Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.

Special case entities

There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City.

a) The Sovereign Order of Malta: The Sovereign Order of Malta was established during the Crusades as a military and medical association. It ruled Rhodes from 1309 to 1522. It was entrusted to rule Malta by the treaty with King Charles V of England in 1530. It lost its rule of Malta in 1798. In 1834 the Order established its headquarters in Rome as a humanitarian organization. The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States. Today, the Order maintains diplomatic relations with over forty States.

(b) The Holy See and the Vatican City: The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope. It is not a State in the normal sense of the word. It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City. Apart of some one thousand Church functionaries, it has no permanent population of its own. Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty. Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties.

5. Individuals

The ultimate concern for the human being has always been the essence of International Law. This concern was apparent in the Natural Law origin of the classical International Law. The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.

In the Twentieth Century, International Law became again concerned with individuals. In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded. During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security. The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace. On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established. The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity. The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law. The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.

Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law). On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.

The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration. In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference. The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”

In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms. The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples. Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection. Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.

Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals. Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969,the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.

In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law. This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law. Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law. International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.

6. Minorities

The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labour standards. After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general.

The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community. Various efforts have been made on the global and regional level to improve the legal protection of minorities. On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”. On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities”] adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.

Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law? Do minorities have international legal personality?

There is no clear answer to these questions. Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs. For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.

7. Indigenous Peoples

In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand. Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.

In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality. They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality. International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.

Origin and Development of Public International Law

LEGUSC international law , law

Introduction

The term “international law” was first used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled “Introduction to the Principles of Morals and Legislation”. Since about 1840, this term replaced the older terminology “law of nations” which can be traced back to the Roman concept of “ius gentium”.

International Law is divided into two branches: Private International Law (conflict of laws as it is called in the countries of the Common Law System), and Public International Law (usually just termed International Law). Private International Law deals with those cases, within a particular legal system, in which foreign elements involve, raising questions as to the application of foreign law or the role of foreign courts. Public International Law deals, in general, with the external relations of States. It is this latter branch of International Law is the subject of this present book.

What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?

The answers to all these raised questions are dealt with in the following sections.

I. Definition of Public International Law

Until the Second World War, legal scholars found no difficulty in defining “Public International Law”, in one formation or another, as the law that governs the relations between States. This traditional definition is a reflection of the prevailing doctrine of the nineteenth century and the first half of the twentieth century considering that only states could be persons (subjects) of Public International Law, in the sense of enjoying international legal personality, i.e., being capable of possessing international rights and duties.

However, since the mid-twentieth century, the traditional definition has become controversial due to both the expansion of the scope of the Public International Law into new areas and the emergence of new actors, beside states, on the international scene, such as international organizations, multinational corporations, individuals and groups, including minorities and indigenous peoples. Some of these actors have acquired international legal personality, or, at least, certain rights under International Law.

In the light of this development, the traditional definition has become in-comprehensive description of this law, and the change of the definition of the Public International Law has become inevitable. Public International Law has been defined as a body of legal rules which regulates or governs relations between international persons (subjects). This contemporary definition of Public International Law goes beyond the traditional one which defines this law as a body of rules governing relations between states.

Thus, the contemporary Public International Law consists of the following:

(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each other’s;

(b) Legal rules related to the functioning of international organizations, their relations with each other and their relations with States and individuals; and

(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these subjects are the concern of the international community.

Public International Law now covers vast and complex areas of international concern, including traditional topics, such as the State, peace and security, the laws of war, the laws of treaties, the law of the sea, the law of diplomatic and consular relations, as well as new topics, such as international organizations, economy and development, air law and outer space activities, communications, the environment, and last but not least, human rights.

The rules of Public International Law are general and universal in their nature, and are legally binding on all the persons of International Law. These rules must be distinguished from what is called international comity and what is known as international morality. A comity is a friendly gesture or courtesy exercised by one State toward another without constituting a legal obligation; an example of a comity is the flag salute at the sea. A comity helps in promoting and maintaining friendly relations among States. While not a legal rule, a comity can be widely observed and can evolve into a customary international rule or be codified as a law; an example of an international comity which was codified as a law is the exemption from customs duties of personal articles used by diplomats (codified in the Vienna Convention on Diplomatic Relations of 1961).

Rules of International Law may meet at certain points with principles of international morality since they cannot be divorced from their moral values. However, the former rules are legal in their contents and forms, while the principles of morality are part of the discipline of ethics which is not legally binding.

II. Origin and Development of Public International Law

The foundations of Public International Law as it is understood today lie firmly in the development of political relations between the Western European States some 400 years ago. However, certain basic concepts of this Law can be traced back thousands of years ago, in relations between ancient political entities, such as of the Near East, Greece and Persia.

The structure and development of Public International Law is connected with the era of sovereign national States dealing with each other as independent entities. In this sense, therefore, the history of this Law can be regarded as beginning in the 16th Century with the emergence of independent nation-states from the ruins of the medieval Holy Roman Empire which was based on the claims to universal authority of the Pope as the spiritual, and the Emperor as the temporal, head of Christian nations of Europe. As this Empire disintegrated, a growing number of independent and equal States filled the gap.

The Emergence of independent and equal States subject to no temporal superior authority led to new political theories. The most prominent among these theories was the theory of Sovereignty. This theory was explicitly formulated by Jean Bodin (1530-1596) in his treatise entitled Six Livres de Republique (Six Books on the Republic) of 1576. According to Bodin, in every State there exists in an individual monarch a power called sovereignty (majestas). Sovereignty is a Republic absolute and perpetual power. It is absolute because it is indivisible; however, it is not without any limits. While such a sovereign is not bound by the laws himself instituted, he remains bound by the divine law, the law of nature, and the law of nations. Sovereignty is perpetual because it does not disappear with its holder (the sovereign). The concept of sovereign as supreme legislator, as formulated by Bodin, was in the course of time evolved into the principle which gave the State supreme power vis-à-vis other States.

The coexistence of independent sovereign States led to the development of the system of interstate relations. The need for rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon the Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules. The significance of the Roman Law and the Cannon Law contribution to “the law of nations” lies not only in the development of a modern system of interstate legal relations, but also in the development of many principles of general equity and “natural law” some of which are similar to certain general principles of law recognized by civilized nations.

In the few centuries that preceded the Thirty Years War (1618-1648), the intensification of international trade, and the improvements in navigation and military techniques, and the discovery of many distant lands by the European States stimulated further development of international practices and the emergence of new conceptions of the law of nations. The intensification of trade led to the conclusion of many commercial treaties and the emergence of new practices and principles related to the law of merchant and the maritime law. Notably, the growth of international trade had from the 8th Century onwards led to the development of international law of merchant and, in particular, to various compilations of maritime law which gained increasing international recognition. The international customs and principles related to the law of merchant and maritime constituted part of the practices and principles of “the law of nations.”

The discovery and subjugation of distant lands and peoples by European States produced numerous conflicting claims of sovereignty, jurisdiction, rights of trade and rights of navigation as well as problems of relations. All these developments urged the Europeans to resort to the Roman Law for helpful norms or analogies, and consequently led to new practices and principles.

By the 17th Century, the growing complexity of international principles, customs and treaties had given rise to their compilation and to the development of further rules governing the conduct of States in time of war and peace. The most important treatise, dealing with States’ relations in time of war and peace, of this period was “De Jure Belli Ac Pacis” (On the Law of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo Grotius (1583-1645). Hugo Grotius is recognized as the “Father of International Law”, and his treatise is generally regarded as providing the foundation of the Public International Law.

Beside Grotius, there are many jurists who contributed extensively to “the law of nations” during the 17th and the 18th centuries. Among these jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617), Alberico Gentili (1552-1608), Samuel von Pufendorf (1632-1694), Richard Zouche (1590-1660), Johann Jakob Moser (1701-1785), Christian Wolff (1676-1754), and Emerich de Vattel (1714-1769).

The International Law (the law of nations) further expanded in the 19th Century. This expansion was due to major events such as the expansion of the European empires, the rise of powerful States both within and outside Europe, the spread of the thought of democracy and nationalism, the Industrial Revolution, the modernization of world transport, and the influence of new inventions. All these events urged the international community to develop the International Law in order to accommodate such events. Consequently, International Law as a law regulating diplomatic and commercial relations between States, and the conduct of war, multiplied and intensified during the 19th Century.

The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law. The development was characterized by a new departure in the evolution of this Law. International Law began its evolution from being primarily a system of regulating relations between States towards becoming also a system of international cooperation.

The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labour Organization (ILO), affiliated with the League of Nations, in 1919 signalled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between States. The ILO was the first permanent international organization concerned with the improvement of labour conditions and social welfare at the international level. In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.

The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community. The first major event has been the expansion in the membership of the international community. New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States have been different from those of other States; they have been occupied with the development of their political, economic and social systems. The second major event has been the massive expansion of international organizations for cooperation. Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.

Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affairs have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased both its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nations and its specialized agencies have been playing a significant role in developing and expanding Public International Law.

In conclusion, Public International Law has evolved from being primarily a law of coexistence, which characterized it from its birth in the early 16th century to the mid-20th century, to a law of international organization and cooperation. Moreover, the most important characteristic of Contemporary Public International Law is the steady expansion of its scope through the inclusion of new subject matters formerly outside its sphere, and the inclusion of new participants and subjects such as international organizations and individuals.

THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

LEGUSC international law , jurisprudence

1.0 INTRODUCTION

1.1 THE NATURE OF INTERNATIONAL LAW

1.1.1 Definition

In the most simplified form, international law is defined as a system of law whose main function is to regulate relations among nations. This was a notion developed since the 16th century, and it was more expounded in the Lotus case (case of 1927 court of international justice, series A, No 10/187).

However, it is accepted today that the subject of international law does not only cover relation among states, but extends to rights and duties pertaining to international organizations, international companies, and individuals.

The term international law is sometimes referred to in alternative exforessions as:

The common law of mankind
Transnational law
Global law

1.1.2 The underlining philosophical perspectives behind the theory of International law

There have been developed theories and philosophies to try to explain international law, especially as regards where it comes from and why a state should comply with a rule of international law.

So for, two philosophical perspectives try to explain the nature of international law, namely natural law and legal positivism.

Natural law: Hugo Grotuis and Samuel Pufenderf

Advocates of natural law theory believe that there are principles of natural law that exists independently of the people. The task for the people is to find the law.

The best known of the naturalist writers was Dutchman called HUGO GROTIUS [1583 – 1645] He is often regarded as the founder of modern international law. He wrote a book titled ״ De Jure Belli a c Pacis – 1625.״

In his perception, natural law is the rule of right reason, which teaches us that an act in just in so far as if confirms to natural reason, and morally just or unjust and consequently for bidden or commended by God himself as the author of nature. This natural law does not change. God himself cannot change the scheme of things,

Applying this to international law, natural law is the ever- present source for supplementing the volunting law of nations, for judging its adequacy. The will of states cannot be the excusive or decisive source of the if nations.

On his part, SAMUEL PUFENDORF ( 1632 – 1694 ) suggested firmly that, international law cannot arise from custom or from treaties. The only international law that could exist should be part of natural law.

Positivism: Lasso Oppenheim.

Positivism lies in the simple asceticism that law is made by people or its authorities. Therefore, the people and its authorities make the law, and not that law is derived from some higher authorities.

Thus, in the international legal system, states make the law. Therefore, international law is a law between states, and it concerns states only and exclusively.

Positivists argue that, because states make the law the law derivers its authority from the mill of states. This is what makes international law obligatory. They further argue that, natural law philosophy has the overall problem of justifying international law as obligatory to states.

This statement by the positivists was echoed in the decision of the permanent court of international justice in the Lotus case {supra} 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״

However, neither natural law nor positivism alone can explain international law it is a combination of both.

1.1.3 The function of International law

Firstly international law is expected to facilitate and support the daily business of international relation and politics. It does so by allocating decision making power within the international system.

Secondly, it is supposed to prevent the pursuit of multiple national interests, or private interests from becoming anarchy.

Thirdly, it allows for the co-existence of multiple political units and their interruption

Fourthly, it advances particular values – for examples the regulation of the use of force and the protection individual/human rights.

1.1.4 Is international law really law?

Once of the most debated issues by writers is whether international law is real y law. Those who dispute the legal nature of international law point to a number of pieces of evidence to support their case.

i) Lack of institution

- In the context of the state, there is legislative judiciary and executive. In the international system no legislatures, judiciary, and execution in the real sense

ii) The command theory

- The 19th century positivists (analytical passivity) understood law as the command of the sovereign. This school of though was expended more by John Austin (1790- 1859). But see mighty international law does not meet one Austin understanding of law.

iii) Effectiveness:

- There are julosts/writers who argue that, even if international law came be regarded as law, it is so ineffective to rend it meaning

iv) Lack of grund norm:

- Municipal law can be validated by the presence of a grund norm. International law cannot hence cannot be validated.

1.5 The dual character of international law

International law provides both an operating system – and a normative system for international relations.

Operating system;

As an operating system, international law sets the general procedures and institutions for the conduct of international relations.

It provides a framework for establishing rules and norms
Outliners the parameters for interruption
Provides procedures and forms for dispute resolution among those taking part in the interactions. In this aspect, international law is״ facilitative״

Normative System:

As a normative system, international law takes a legislative character by mandating particular values, and directing specific state behavior.

In this aspect international law is ״directive״as it creates norms. The normative system of international law defines the acceptable standards for behavior in the international system.

1.2 THE HISTORY OF PUBLIC INTERNATIONAL LAW

Public international law cannot be properly understood without some knowledge of its history. The accepted view among scholars is that, the subject of public international law began to emerge in western Europe in the 16th century , and that this emergency is associated with the evolution of the modern nation state.

1.2.1 The period until 1500

The consensus among scholastic is that, a recognize corpus of international law is no more than 500 years old.

However, even before that, some international practices were already taking place. For example, states were involved in the concluding of treaties and sending of ambassadors even from the time of ancient Egypt of records of Greek city states found evidence pertaining to the conduct of relations and declaration of war.

1.2.2 The 16th Century

In this period, most notable development in Western Europe that had an impact on international law was the general thinking about the source of the secular power. This came about out of the trend of that time, to break away from religion – controlled states, to secularism.

Once of the prominent proponents of this persecution was NICCOLO MACHIAVELLI (1469 – 1527) Machiavelli perceived that, that the spiritual unity of Europe under the pope, and the political unity provided by the stake, Holy Roman Empire had been fracture? The take he argued had become a self – standing entity. Thus, he started pondering on two important things namely how the prince (ruler) should retain power within the state and how he might conduct himself visa – a visa his fellow’s rulers.

In summary, what Machiavelli simply said is that, the fracturing of Christendom and the Roman Empire created a gap or vacuum which gave birth to international law.

However, following this development, jurists in that time become pre-occupied more with the first element, namely the power within the estate. This preoccupation focused on the question of severity. Thus the period saw the emergence of political philosophers like Team Bodin, Thomas Hobbes, and John Austin, developing a theory of sovereignty. However, all the theories were enlivened by natural law thinking.

1.2.3 The 17th Century:

The 17th century marlins a transition from natural law theories to secular positivism. The most significant writer was HUGO GROTIUS (1583- 1645). HUGO GROTIUS is sometimes referred to as ״ the founder of international law״

Mare Liberum (1609), This argned for the freedom of the seas
De Jure Belli ac Pacis (1625)

While remaining in the natural law tradition, sought to found the law of nations upon a secular form of natural law. Grotius argued that, human beings were both competitive but at having a desire for harmony. Based on the above faits Grotius that, a secular form of natural law would demonstrate how states could live together without conflict. But, this secular natural law should not be the product of divine revelation, but a product of sobe reflection on the human condition.

Therefore , by the use reason, it would be posit to determine the rules that should operate to govern relations between rulers.

After Grotius, the law of nations would be founded on a mixture of secular natural law and position′ms.

Grotius´ssideas that later grinded acceptance

International relationed are subject to the rule of law, and this exists independent of theology
A secular natural law has a role as a source of international law
the social nature of man is the basis of the law of nature
the basic unit of international relations is the state
There is need to differentiate between just and unjust was
Once of the tasks of the law of nations is to promote peace.

Other writer on international Law:

i). Samuel Pufendorf (1632 – 1694)

- wrote on natural law and issues of war

ii). Richard Zouche (1590 – 1661)

- rejected natural law and concentrated on issues of sovereign mills behavior

iii). Thomas Hobbes

- focused on the location of sovereign power within the state. Sovereign power is not derived from natural law, but from social contract. Only the sovereign could Declan war or peace or make law.

iv ).John Locke

- Government was legitimate if formed on consent.

- On the law of nations, it should be formed upon the actual and expressed conduct of states, rather than on principles to be deduced with the aid of divine revelation

- Thus, the law of nations must be about independent states, regulating relations among those states, and examining the actual conduct of those states.

1.2.4 The 18th Century.

Development in the law of nations in the 128th century took place against the background of alignment. This was the period of rise of freedom of thinking.

The period saw the development of both positivism and natural law, as well as theories of natural rights.

At this time, already the law of nations was viewed as a horizontal system regulating the relations sovereigns, and distinct from the vertical system training in domestic law.

the circumstances in which force was justified
the rulers related to the conduct of diplomacy
the law of the sea – because of mercantilism

1.2.5 The 19th Century.

In the 19th century, a number of developments took place. The first was the increasing realization that international relations required to be managed.

Secondly, it was realized that some attenuation need to be paid to the individuals interests. This was manifested in the campaign against slewed trade.

1.2.6 The 20th Century .

During the 20th century start, the world saw the occurrence of the first world (1914 – 1918). This war prompted a reconsideration of the met words employed in international relations.

Thus, the ״ League of Nations ״ was established to prevent any further inflict in Europe. To this effect the ״ Treaty of versatile ״ provided the government for the league of nations, which would contain provisions designed to restrict the recourse to force at the some time, the post – war treaties with newly independent states would contain guarantees of minority protection, as well as a desire to improve human ring.

At Versailles, the permanent court of international justice was also born, though it started sitting at the Hogue in 1922.

The League of Nations made some achievements. However, at the outbreak of second world, war in September, 1939, the existing international machinery collapsed.

Developments towards the new international order 1945.

There are many events that took place, and led to the post war international structure. The important among them are as follows:

i). The inter – Allied Declaration (June 1941)

- Representatives of Great Britain and her dominions issued this declaration pledging to establish a post – war world formed on peace and security.

ii). The Atavistic charges (August 1941)

- The leaders of Great Britain and USA agreed on the broad principle that should govern any postwar international machinery.

iii). The United Nations Declaration (January 1942)

- Representatives of 26 states meant in Washington De to approve the principle of the Atlaritic chaiter and to consent the establishment of new international organization that would be provisionally called ״ the united Nations ״

iv). The London Committee (May 1943 )

A committee met in London to consider a new international count of Justice. It produced it report in February 1944.

v). The Moscow Declaration (October, 1943)

Representatives of the United States, Britain, cluing and the Soviet Union signed the Moscow Declaration general security indicating their approval of the concept of an international body changed with the responsibility for the maintenance of peace.

vi). Tehran Iran Meeting (November 1943)

Presidents Roosevelt, Prime Minister Churchill, and General Secretary Stalin met in Tehran to review the course of the conflict. The three leaders agreed in principle that, a new international body would be established to maintain world peace.

vii). Breton Woods initiatives (July 1944)

The United States oversaw the establishment of the international Monetary Fund (IMF), and the international Bank for reconstruction and Development (The World Bank).

vii). The Yalla conference (February 1945)

President Roosevelt meant with Joseph establish and vision Churchill to settle a structure of the new post – war institutions. In this meeting, the constitution and powers of the Security Council were agreed.

ix). The San Francisco Conference (April - June 1945)

The conference concluded with the signs of the united Nations Charter on 26 June 1945 by . At the same time, the draft situate for the international court of Justice was approved.

As an international organization, the United Nations was designed to play a central role in the post war world. In broad terms, the objectives of the organization were set out in article 1, and may be summarized having four main aspects:-

To maintain international peace and security
To develop friendly relations among nations
To achieve international cooperation in solving problem of international nature
To is a centre for harmonizing the actions of nations in the attainment of common ends.

1.2.7 International law and the Modern world

After formation of the United Nations in 1945, more events unfolded, which had impact on international law.

(i). Decolonization

The event decolonization brought with notions of self- determination. Thus, in the 1950s and 1960s, international law was operatives in greatly changed environment

Decolonization led to the increase in the number states, hence augmenting the membership of the general assembly.

ii). Growth of the Human rights regime the safeguard for human sright became one of the prominent post was agenda. This was a revival of interest in natural law. This the universal declaration human rights was adopted in 1948. Many states followed by starting to confer basic guarantees in human rights or by providing that rules of international should be incorporated into municipal law, since 1948, international human rights law was grown tremendously.

1.2.8 The Current Foundations of International Law

Currently, international law is said to be founded on the following billows:

i). The charter of the United Nations (1945)

ii). Statute of the international court of Justice (1945)

iii). Vienna convention on diplomas tic relations (1961)

iv). Vienna convention on the law of treaties (1969)

1.4 Public and Private International Law

The distinction between public and private international law is sometimes conventional. However, in simple terms, public international law generally involves states and internationals organizations in their relations with each others, or with individuals and companies.

On the other side, private international law involves individuals or companies in their relatives with each others, but at the international sphere

Some writers are of the view that, private international law partly includes norms of public international, and partly norms of domestic legal system.

It appears that, the expression private international law comprises those rules that apply when a domestic court is confronted with a claim that concerns a foreign element. The major questions are: which court should exercise Jurisdiction, and which law should be applied.

Thus, private international law can comprise three elements:-

i) which court should exercise jurisdiction?

ii) which law should be applied?

iii) to what extent wills country A derecognizes and ensures judgments given by the court of country B.?

Clearly, the subject of private international law is concerned with rights arising in private law and enforceable by individuals against each other. In the United States, private international law is referred to as ״ conflict of laws ״

2. THE SOURCES OF INTERNATIONAL LAW

It is generally agreed that article 38.1 of the statute of the international court of justice lists what are now considered as sources of international law.

By sources, the general agreement is that, their are areas where we can find an international legal norm,

The said article 38.1 states that: The court, whose function is to decide in accordance with international law, such disputes as are submitted to it, shall apply.

international conventions, whether general or particular, establishing rules express by recognize by the contesting states
international custom, as evidence of a genera; practice accepted as law
the general principles of law recognized by civilized nations
subject to the provisions of article 59, Judaic decisions and the teachings of the most highly qualified publicists of the various nations

3.8.2. However, this provision shall not prejudice the power of the court to decide a case ex aqua et bono, if the parties agree thereto.

And article 59 provides that. The decision of the court has no binding force accepts between the parties, and in respect of that particular case.

2.1 TREATIES:

Article 38 (1) (a) of the statute of the international court of justice requires the court to use international conventions. Whether general or particular, establishing rules expressly recognized by the contesting states

The term convention also means treaties. The difference in vocabulary will be dealt with later. Also, there will be a chapter devoted entirely to the law of treaties.

The definition provided by article 2 (1) (a) of the Vienna convention on the law of treaties (1969) is that, the word treaty means:

״An international agreement concluded between states, in written form, and governed by international law, whether embodied in a single instrument or in two or more related instrument and whatever its particular designation״

As a source of law, the treaty is founded on certain accepted principles which may be summarized as follows:

i).The treaty arises from the express consent of a state. Being on consent. Tue general principle is that on the parties to a treaty are bound by its terms. However, there is a category called disparities treaties that create an objective legal regime binding upon third state.

ii). The treaty governs the relations of parties inter se. This means a state signatory to the treaty is bound by the treaty in its dealings with other signatories. I t is not bound in its dealings with non-signatory state. However, this position changes if the treaty in question will have acquired the status of customary international law.

c). Where a treaty codifies customary international law, the parties (signatories) will be bound according to the law of treaties, and non- parties (non – signatories) may be bound because the obligation arise in customary international law.

- Nicaragua case (1986) ICJ; 14

- North Sea continental shelf case (1969) ICJ; 3

All treaties contain obligations for states that are parties to them. However, a distinction is always drawn between law making treaties and treaty contracts.

Law making treaty will purport to lay down general rules and will be multilateral in character treaty contracts are treaties which resemble contracts. An example is where state a makes a trade treaty with state B.

2.2 CUSTOM:

Article 38(1) (5) provably that international custom as evidence of a general practice accepted as law shall apply. This leads to international customary law.

So for, there is a difference between custom and Usage, Usage represents a praline nany stage regarding rules of conduct which are being observed by force of social press is. A custom may be said to arise when the practice has become general.

Customary international law is greatly deeded from state practice and opinion Jurist:-

2.2.1 State practice

The following are the element of state practice

i). Diplomatic relations between states official statements by foreign ministers, the opinion of legal advisors, and bilateral treaties all constitutes evidence of state practice. Similarly, statements by ambassadors or diplomatic representatives fall within this category.

ii). The practice of international Organizations

Since much activity between states is conducted though the auspices of international organizations the cumulating conduct of an international organization constitutes evidence of state practices.

iii). State Laws and Decisions of Municipal Courts

In seeking evidence of state practice, it is legistion to examine the judgments of municipal courts and the enactment of individual legislatures.

2.2.2 Opinion Jurist sive necessitates

The purpose of the doe trice of opinion julis is to demonstrate that, the right or obligation comprising the rule is not a mere matter of usage or practice but recognition by states as obligatory.

Opinion Julis is actually what turns a mere usage into custom, because states will behave a certain way because they are commenced that it is binding upon them to do so

2.2.3. The Test of Custom

i). Duration

If the constancy and generality of a practice are proved, no particular duration is required. The passage of time will, of course, be a paint of the evidence of generality and consistency. It is not very necessary that a practice be long or even immemorial

ii). Informing and Ansistency of the practice.

For a customary rule to be recognized as a rule of international law, it should be uniform

In the Asylum Case ( ICJ Reports (1950),P 276 -277 the ICJ pronounced that, that the party which relies on a custom, must prove that this custom is establish in such a manner that it had become binging on the other party, and that, it is in accordance with a instant and uniform usage précised by states in question.

iii). Generality of practice

Once of the proofs of custom in the generality of practice among states. Generality of practice he to do with level of acceptance of the concept.

Therefore, customary law is thus established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at hand, and acquiescence by other states.

2.3 THE GENERAL PRINCIPLES OF LAW

Article 38(1) © of the statute of the international court of justice refers to the general principles of law recognized by civilized nations

In any system of law a situation may well arise where a court is considering a case before it realized that there is no law covering exactly that point. In such instances, the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules, or directly from the general principles that guide legal system.

The following are some of the sources, or instances of general principles

2.3.1 Recourse to Equity.

Equity is one of the general principles of law found in many legal systems. Equity could be understood as set of principles constituting the values for the legal system.

In the case of Rann of Kutch Arbitration between India and Pakistan in 1968, ( 50ILR,P. 2), the attribution agreed that equity formed paint of international law and that, accordingly the parties could rely, on such principles in the presentation of their cases.

The international court of justice in the North Sea continental Shelf cases (ICJ Reports, 1969 p. 3) took the some stand.

2.3.2 General Principles of Law in the Practive of Tribunals.

i) Arbitial tribunals

Arbitral tribunals have frequently resorted to Municipal analogies. This could include issues of responsibilities of a state for the acts of its agents, or in assessment of damages, or any other subject matter.

ii). The International Court of Justice

The court has used this source ( general principles ) as paint of juclicial reasoning. For example, on a umber of occasions, the principle of occasions, and acquiescence have been relied on by the court.

The court has also used most frequently and successfully the domestic law analogies in the field of evidence, procedure, and jurisdiction questions.

2.3.3. General Principle of international Law.

This may refer to logical propositions resulting from judicial reasoning on the basis of existing international law, as well as municipal analogies.

There are already agreed principle of internations law such as pact sund servanda, principles of consent, reciprocity, equality of states, finality of awards and settlements, the legal validity of agreements, good faith, domestic jurisdiction, etc.

2.4 SUBSIDIARY MEANS

Article 38 (1) (d) provides that the court shall apply judicial decisions and the teachings of the most highly qualified publicists of the vision nations, as subsidiary means for the determine of the rules of law.

2.4.1 Judicial Decisions

i). Decisions of international tribunals judicial decisions of international tribunals are not strictly speaking a formal sources but in some instances they are regarded as authoritative evidence of the state of the law

ii). Arbitral tribunals

In a number of awards given by arbitral tribunal, there are obtained notable contributions to the development of the law by eminent jurists sitting as arbitrators, umpires or commissioners.

iii). Reference to arbitral awards by the international court of justice

The court has on few occasions refereed to particular decisions of it self, and referred more to the jurisprudence of international arbitrations

iv). Decisions of the international court of justice

The general trend is that, the ICJ applies the law and does not make it (no precedent). However, a unanimous decision has a role in the progressive development of the law. Example is decisive infthences of decision of the following cases in the development of international law.

-The Reparations Case

-The Genocide Case

-The Fisheries Case, and

-The Nottebohm Case

v). Decisions of Nations Courts
Article 38 (1)(d) of the statute of the ICJ is not confined to international decisions. Decisions of national courts and tribunes have euidlentional value. For example, some decisions provide direct evidence of state of practice, state succession; sovereign immunisty, diplomatic immunity, extrachiction,, was orimes,etc.

2.4.2 The Writings of Publicists

In principle, the writings of publicists only constitute evidence of the law. However, in some areas individual writers have had a formative influence E.g Giclel has had some formative influence on the law of the sea.

Not forgetting the need for caution, the opinions of publicists are used widely.

3. SUBJECTS OF INTERNATIONAL LAW.

Subjects of international laws are entities capable of possessing international rights and duties, and having the capacity to maintain its rights by bringing international claims.

However, a distraction should be made between subjects of international law, and main players in the international systems

3.1. STATES AS SUBJECTS OT INTERNATIONAL LAW.

The rise of positivism in the 18th authors placed the state as the basic polical unit at the centre of international diplomacy. It was them assented that, only states are subjects of international law. However. This view later changed to include other entities.

3.1.1 Creation of statehood

Today it is generally accepted that, the legal criteria for statehood are those set out in article 1 of the Montevideo Convention on the rights and Duties of states (1933). This reads;

״The state as a person in international should possess the following qualifications a)

Permanent population b) a defined territory c) a government d) capacity to enter into relation with other states.״

i) Defined Territory

Territory is the essence of statehood. In principle a state must enjoy sovereignty over a defined area. Thus, within a defined area, the sate will possess sovereignty, and may prevent other state/states act without its consent.

ii) Population

A second requirement it that, there should be a stable population. The evidence must disclose some degree of permanence, sop that, it is possible to attribute statehood to nomadic tribes moving through temitories.

iii) Consol by a government

There must be a degree of effective government control over the territory in question. A state is a political entity, and there must be an element of control by government.

However, once a state is established, its existence will not, be terminated by civil war, in by political instability, or frequent revolutions, or by attempts at secession. Likewise, defeat in war inoccupation by a victorious army or annexations will not lead to extinction.

iv). Capacity to enter interrelations with other states.

The object of oratorio is act a barrier to acknowledging by satellite states or pessimist ones, in order to deny them recognition like when the Japanese invades Manchuria, in 1931, and declared it an independent state with the name MANCHUKUO.

3.1.2 Special Types of State

i). Protectorates, usually there was treaty such that the local ruler retained control of internal affairs, but the protecting state would conduct external relations on its behalf once the protectorate ceased, the territory become a state by itself.

ii). Feudal states

There are several ways in which a state can exist. It might be a unitary state where al power are concentrated at the centre, or feudal state in which there is formal distribution of powers, between the centre and constituent paits. Thirdly there ca be a confederation where a number of states come together in a loose association, with few power held at the centre.

iii). The Sovereign order of Malta

The order was established as a military and medical association. It was govern the Island of Malta as an extension of the kingdom of Sicily this sovereignty was lost in 1798, and in 1834 the order established its headquarters in Rome as a human tarian Organization.

The order had international personality and continued to exchange diplomats with most European countries. Italia declared that Malta is still an international person. Hence it continues to maintain diplomatic relations with over 40 states.

iv) The Holy see and the Vatican

Up to 1870. the papal estates (land) served as the territory and sovereignty of the papacy there were conquered by Italy in 1870 in 1929, the Lateran treaty was signed between the Vatican and Italy, recognizing the state of the Vatican City – and the sovereignty of the Holy see.

Since them, the Holy See has continued to engaging diplomatic relations and enters into international agreements and concordats. According, its status as an international person was accepted by many states.

3.1.3 Recognitions

One of the most important things in international law is recognition. This is the legal reaction of other states

Non recognition by other nations, of a government claiming to be a national personality, is usually appropriate evidence that, it has not attained the independence and control evitithing by international law to be classed as such.

3.2 Individuals

At the start pf international law, it was conceive that only states have international legal personality , and international law was about rights and duties of state only.

When treaties were concluded providing for the predation of selves, this was considered to be an exception.

The 20th century has seen a change. The Nuremberg tribunal (1945) was premised on the personal responsible of individuals during the conduct of was. Art 7 of the charter establishing the tribunal made it clear that there would be no immunity by virtue of office. This meant imposing obligations and duties on individuals.

In terms of granting rights the whole human rights, regime grants rights to individuals emanate from international law. This enables individuals to pursue cases before international tribunals, against states.

3.3 INTERNATIONAL ORGANIZATIONS

Since the 19th century the world has seen leverage number of international organizations. However, they were not deeper to posses international personality.

However, the issue came of deliberation before. International court justice in the reparation for injuries case – (reparations for injuries suffered in the device of the United Nations – 1949 the court pronounced thus.

״ Fifty states, representing the vast majority of the members of the international community, have the power, in conformity with international law, to bring into, bring, an entity possess by objective international personal and not merely personality recognized by them alone, together with the capacity to bring international claim ״

However, the important thing for international organization is the power enjoyed by it. The decision above, was based on the power enjoyed by the United Nations.

MAIN BODY

4. INTERNATIONAL LAW AND MUNICIPAL LAW.

Introduction:

With regard to internationals law and municipal law the theoretical question is whether international law and municipal law are part of a single legal order or whether they comprised two districts systems of law.

The question above raises further questions, namely;

i). The status of rules of municipal law before international tribunals,

ii) The circumstances in which rules of public international law will b e applied by a municipal court and

iii) What is to happen if a rule of municipal law is in conflict with a rule of international law.

4.1 THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

There are two doctrines that have sought to illumine the relation between municipal law and international law. These doctrines are referred to as monism and dualism.

4.1.1. Monism;

Monism holds that, international law and municipal law are both plait of a single legal structure. Thus the monist considers the two to operate within a common fiels and to be concerned with the same subject mater. If there is a conflict between the two, then the rules of international law shall prevail.

In the monist practical therefore, once a treaty is, signed it becomes paint of the law of the land immediately.

4.1.2 Dualism

The dualists argue the international law and municipal law are separate system. The former requlater relations between states, and record regulates relations between the state and its citizens.

Thus, since they are two different systems, international law operates in the municipal sphere only when there is a specific act yp sdopt the law. In the event of conflict between the two, municipal can should give effect to municipal law.

4.2. MUNICIPAL LAW BEFORE INTERNATIONAL COURTS AND TRIBUNALS

As noted earlier, in appropriate circumstances, the judgments of a national court may constitute a source of international law

While this the case, the general rule is that the state may not rely upon a provision of municipal law, to excuse a breach of international obligations, under article 27 of the

Vienna convention on the law of treaties 1969, provides that,

A party may not involves the provisions of its, internal law as justification for its failure to perform a really

Therefore, obligations amassing under international law prevail over the term of municipal law.

A doctrine development in recent years asserts that, a state will need to ensure that its domestic legislation is in liene eith the sprovisings of any international obligation

4.3. INTERNATIONAL LAW BEFORE MUNICIPAL COURTS.

The stay and treatment of international law will differ from state to state. The starting point is the constitutional arrangement of a particularly state.

In the legal system of county, it is stated how international law is to be treated by the courts of that state.

So far, there are two doctrines in this regard namely doctrine of Incorporation and transformation

4.3.1 Incorporation

The doctrine of incorporation holds that, international law is automatically paint of municipal law, without any express act of adoption

In such situation, treaty signed and satisfied by a state would become binding on the citizen of that state, without any legislation being passed. As such in some states the writer constitution of the state will provide that rules of international should become automatically paint of municipal law. In principle, this doctrine follows the monist approach.

4.3.2. Transformations

The doctrine of transformation holds that, the rules of international law do not become paint of municipal law, unless and until there has been an express act of adoption.

Thus, the rule of international law must be transformation into domestic law. Thus, if a state has entered into a treaty, that instruments would not be given effect to in the courts of the state, unless domestic legislation had been enacted to transform is into municipal law.

Again, this is the general trend undertake by dualists.

4.4. INTERNATIONAL LAW AND THE MUNINCIPAL LAW OF TANZANIA.

Tanzania follows the dualist tradition. There fore the position is that, linter national law, and the municipal law of Tanzania is two different systems.

Being adherent of the dualism system, any rule of internationals law, must be transformed into the municipal law to be enforceable by the courts of law in Tanzania.

The process is such the, it is the excusive that signs the treaty. However, a after signed some should be tabled in parliament for stratification. Once satisfied, the same is then tabled as a bill, and on Act of parliament will be enacted to that effect.

In the Tanzania legal system, the hierarchy of laws goes thus;

1. Constitution

2. Psricipal Legislation

3. International Law

4. Etc.

The hierarchy is so because international will to be incorporated into municipal law.

In some circumstances, the rules of international law may simply be satisfied, by the parliament will not enact a parallel legislation if it feels that the matters contained in the international law are already covered in one, or various existing legislations.

So far, two philosophical perspectives try to explain the nature of international law, namely natural law and legal positivism

Natural law: Hugo Gorotius and Samuel Pufendoif

Advocate of natural law theory believe that there are principles of natural law that exists indepently of the people. The test for the people is to find the law

The best known of naturalist writer was Dutchman called HUGO GROTIUS 583 – 1645) He is often regarded as the founded of modern international law. He wrote a book titled

״ De Jure Belli a c Pacis – 1625 ״

In his perception , natural law is the rule of right reason, which teaches us that an act in just in so for as it confirms to natural reason, and morally just or unjust and sequent forbidden or commended by God himself as the author of nature. This natural law does not change. God himself cannot change the scheme of things.

Applying this to international law, natural law is the ever- present source for supplementing the volunteering law of nations, for judging its adequacy. The will of states cannot be the exclusives or decisive source of the law of nations.

On his part, Samuel Pufendorf (1632 – 1694) firmly that, international law cannot arise from suggested custom or from treaties. The only international that could exist should be part of natural law.

Positivism: Lasso Oppenheim

Positivism lies in the simple assertion that law is made by people or its authorities. Therefore, the people and its authorities make the law, and not that law is derived from some higher authorities.

Thus, in the international legal system, states make the law. Therefore, international law is a law between states, and it concerns states only and exclusively.

Positivists argue that, because states make the law the law derivers its authority from the will of states. This is what makes international law obligatory. They further argue that, natural law philosophy has he overall problem of justifying international law as obligatory to states.

This sentiment by the positivist was echoed in the decision of the permanent court of international justice in the Lotus case ( supra) as follows:

״ International law governs relations between independent states. The rules of l aw binding upon states therefore emanate from their own free will, as expressed in conventions, or by usages generally accepted as expressing principles of law.

However, neither natural law nor positivism above can explain international law at is a combination of both.

1.1.3 The Function of International Law.

Firstly, international law is expected to facilitate and support the daily business of international relation and politics. It dies so by allocating decision making power within the international system

Secondly, it is supposed to prevent the pursuit of multiple nation’s interests, or privet interests from becoming anarchy.

Thirdly, it allows for the co-existence of multiple political unities and their international.

Fourthly, it advances particular values – for example the regulation of the use of force and the protection of individual/human rights.

5.1.5 The dual Character of International Law

International law provides both an operating system- and a normative system for international relations.

Operating System.

As an operating system,. International law sets the general procedure and institutions for the conduct of international relations.

It provides a framework for establishing rules and norms
Outlines the parameter for interactive
Provided and forms for dispute resolution among those taking part in the interactions in this aspect, international law is ״ facilitative ״

Normative System

As a normative system, international law takes a legislative character by mandating particular values, and directing specific state behavior

In the aspect international law is directive as it creates norms. The normative system of international law defines the acceptable standards for behavior in the international system.

1.1.4 Is International Law Really Law?

Once of the most debated issues by writes is whether international law is really law. Those who dispute the legal nature of international law point to a number of pieces of evidence to support their case.

Lack of institutions

In the context of the state, there is legislature judiciary and executive in the international system no legislature judiciary and execution in the real sense.

The Command theory

- The 19th century positivists ( analytical posivists ) understood law as the communard of the sovereign. This school of thought was expended more by John Austin (1790 -1859 ). But see mighty international law does not meet one Austin understanding of law.

Effectiveness

There are jurists/writers who argue that, even if international law cem be regarded as law, it is so ineffective to rendu it meaningless

Lack of grund norm

Municipal law can be validated by the presence of a grand norm. International law cannot hence cannot be validated.

This work was prepared and submitted by Mr. Oscar Juma Mgovano

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