UNIT 1 PIL ANSWERS

Q. Compare and contrast the state practice of United States of America and India with
respect to incorporation of international law into the law of their land. In case of conflict
between a rule of international law and municipal law, which law would the municipal
courts of these countries apply?
Introduction
The United States of America and India have different approaches to the incorporation of
international law into their domestic legal systems. While both countries recognize the
importance of international law, they have different mechanisms for giving effect to
international legal norms within their national legal frameworks.
Approach in United States
In the United States, the doctrine of "monism" prevails, which means that international law is
automatically incorporated into the domestic legal system without the need for any further
action by the legislature or the courts. This is based on the Supremacy Clause of the US
Constitution, which gives federal law, including international treaties and conventions, the
status of the "supreme law of the land." However, in practice, the US has a dualist legal system,
which means that international law is only enforceable in domestic courts if it has been
incorporated into domestic law through implementing legislation or other means.
In India, the approach to the incorporation of international law is primarily through the doctrine
of "dualism," which means that international law is not automatically incorporated into the
domestic legal system and must be specifically enacted by the legislature before it can be
enforced by the courts. India has enacted various laws that give effect to international legal
norms, such as the Prevention of Terrorism Act, 2002, which was enacted to comply with
India's obligations under the UN Security Council Resolution 1373.
Analysis of the Regimes
Both the US and India have taken steps to give effect to international legal norms in their
domestic legal systems, but their approaches differ in terms of the mechanisms used to achieve
this. The US relies on the doctrine of monism, which means that international law is
automatically incorporated into the domestic legal system, while India uses the dualist
approach, which requires the enactment of specific domestic legislation to give effect to
international legal norms.
Overall, both approaches have their advantages and disadvantages. The monist approach may
be more efficient and streamlined, but it may also lead to uncertainty and ambiguity in the
application of international law in domestic courts. The dualist approach, on the other hand,
may be more precise and clear, but it may also be more cumbersome and time-consuming to
incorporate international legal norms into domestic law.
Conflict between International Law & Municipal Law
In case of a conflict between a rule of international law and municipal law, the approach taken
by municipal courts can depend on the legal system of the country in question. There are
generally two approaches that are followed by domestic courts:
1. Monist Approach: In countries that follow the monist approach, such as the United
States, international law is automatically incorporated into domestic law and has the same
status as domestic law. In this case, if there is a conflict between a rule of international law and
municipal law, the court will apply the rule of international law, since it has the same status as
domestic law.
2. Dualist Approach: In countries that follow the dualist approach, such as India,
international law is not automatically incorporated into domestic law and requires
implementation through domestic legislation. In this case, if there is a conflict between a rule
of international law and municipal law, the court will apply municipal law since it has a higher
status in the domestic legal system. The rule of international law can only be applied if it has
been specifically incorporated into domestic law through implementing legislation or other
means.
It is important to note that even in countries that follow the monist approach, there may be
instances where international law is not directly applicable in municipal courts due to the
doctrine of non-self-execution. This means that while the international law is incorporated into
the domestic legal system, it cannot be directly enforced in municipal courts unless it has been
implemented through domestic legislation.
Overall, the approach taken by municipal courts in case of a conflict between a rule of
international law and municipal law can vary depending on the legal system of the country.
Q. Discuss various theories on the relationship between International Law and Municipal
Law and explain the practices followed by the United States and India for adopting
International Law into their own legal systems.
Theories on the Relationship between International and Municipal Law
There are several theories on the relationship between international law and municipal law,
each with its own perspective on how these two legal systems interact with each other. Some
of the most important theories are discussed below:
1. Monism: The monist theory views international law and municipal law as two parts of
a single legal system, with international law having a higher status. According to this theory,
there is no inherent conflict between the two legal systems, and international law is
automatically incorporated into the domestic legal system. This means that international law
has the same status as municipal law and can be directly enforced by municipal courts without
the need for implementing legislation. The United States and France are examples of countries
that follow a monist approach.
2. Dualism: The dualist theory views international law and municipal law as two separate
legal systems that operate independently of each other. According to this theory, international
law is not automatically incorporated into municipal law, and it requires implementation
through domestic legislation. This means that international law has a lower status than
municipal law, and it cannot be directly enforced by municipal courts unless it has been
incorporated into domestic law. India and the United Kingdom are examples of countries that
follow a dualist approach.
3. Transformationalism: The transformationalism theory views international law as a
force for change in domestic legal systems. According to this theory, international law can
bring about changes in domestic law through the process of "transformative interpretation."
This means that domestic courts can interpret domestic law in light of international law, and in
doing so, can transform the meaning of domestic law to be more in line with international legal
norms.
4. Constitutionalism: The constitutionalism theory views international law and municipal
law as two complementary legal systems that serve the same purpose of protecting individual
rights and promoting the rule of law. According to this theory, international law provides a
framework for protecting individual rights and promoting the rule of law at the international
level, while municipal law provides a framework for doing so at the domestic level. This means
that international law and municipal law should be interpreted in a way that is consistent with
each other, and that both legal systems should work together to protect individual rights and
promote the rule of law.
Overall, the relationship between international law and municipal law is complex and
multifaceted, and different countries may adopt different approaches to incorporating
international legal norms into their domestic legal systems.
United States and India follow different approaches to incorporating international law into their
domestic legal systems.
In the United States, international law is generally considered to be part of the domestic legal
system and has the same status as federal law. This is known as the "monist" approach. The
Constitution of the United States provides that treaties are the supreme law of the land and are
binding on all levels of government. This means that when the United States becomes a party
to a treaty, it is obligated to comply with its provisions. Federal courts are responsible for
interpreting and applying international law in cases that come before them. However, the U.S.
also has a "dualist" approach to international law in the sense that international law is not
directly enforceable by U.S. courts unless it has been implemented into domestic law by
Congress.
In India, international law is not automatically incorporated into the domestic legal system, but
must be specifically adopted through domestic legislation. This is known as the "dualist"
approach. India's Constitution provides that international law is part of the domestic legal
system only to the extent that it has been incorporated into domestic law. This means that
treaties and customary international law are not automatically binding on India unless they
have been enacted into domestic law. The Indian Parliament has enacted several laws
incorporating various international conventions and treaties into domestic law, such as the
Indian Copyright Act and the Indian Trade Marks Act. Indian courts also use international law
as an interpretive tool in cases where there is ambiguity in domestic law.
Overall, both the United States and India recognize the importance of international law and
have incorporated it into their domestic legal systems in different ways. While the U.S. has a
monist approach and India has a dualist approach, both countries acknowledge that
international law plays an important role in regulating relations between states and promoting
global cooperation.
Q. Explain the relationship between ‘Municipal Law’ and ‘International Law’. In case of
a conflict between a rule of international law and municipal law, which law would
prevail? Discuss with special reference to India.
The relationship between municipal law and international law is complex and can vary
depending on the legal system of each country. In general, municipal law refers to the domestic
laws of a particular state, while international law governs relations between states and other
international actors.
There are two main approaches to the relationship between municipal law and international
law: monism and dualism. In monist systems, international law is automatically part of the
domestic legal system and has the same status as domestic law. This means that international
law can be directly applied by domestic courts and can even supersede conflicting domestic
laws. In contrast, dualist systems require that international law be specifically incorporated into
the domestic legal system through domestic legislation.
In practice, most countries have a mixture of monist and dualist elements in their legal systems.
International law may be directly applicable in certain areas, such as human rights law, while
in other areas it may need to be incorporated into domestic law. Domestic courts may also
apply international law as an interpretive tool or to resolve conflicts between domestic laws
and international obligations.
The relationship between municipal law and international law is important because it can
impact the ability of states to fulfill their international obligations. States that do not incorporate
international law into their domestic legal systems may have difficulty enforcing international
obligations, while those that do not prioritize international obligations may risk violating
human rights or other international norms.
In conclusion, while the relationship between municipal law and international law can vary
depending on the legal system of each country, both are important in regulating relations
between states and promoting global cooperation. The relationship is constantly evolving as
the international community continues to grapple with new challenges and opportunities.
In case of a conflict between a rule of international law and municipal law, the approach taken
by a country's legal system will determine which law would prevail. There are two main
approaches: monism and dualism.
In monist systems, international law is considered to be part of the domestic legal system and
has the same status as domestic law. This means that if there is a conflict between international
law and municipal law, international law would prevail. In contrast, dualist systems require
that international law be specifically incorporated into the domestic legal system through
domestic legislation. In these systems, if there is a conflict between international law and
municipal law and international law has not been incorporated into domestic law, the municipal
law would prevail.
In India, the legal system has a dualist approach to international law. The Indian Constitution
provides that international law is part of the domestic legal system only to the extent that it has
been incorporated into domestic law. This means that if there is a conflict between international
law and municipal law and international law has not been incorporated into domestic law, the
municipal law would prevail.
However, if international law has been incorporated into domestic law, it would prevail over
conflicting municipal law. For example, the Indian Constitution guarantees certain
fundamental rights to all citizens of India. If a municipal law violates these rights, it would be
considered unconstitutional and would be struck down by the Indian courts. Similarly, if a
treaty ratified by India conflicts with a municipal law, the treaty would prevail to the extent
that it has been incorporated into domestic law.
In conclusion, in India, the municipal law would prevail in case of a conflict between a rule of
international law and municipal law unless international law has been specifically incorporated
into domestic law. However, if international law has been incorporated into domestic law, it
would prevail over conflicting municipal law.
Ques: Critically examine the colonial origin of international law and the impact of post-
colonialism on international law.
Ans: Introduction:
International law has been shaped by the colonial legacy of the Western powers that colonized
and dominated non-European nations. The colonial era established the foundation of the
modern international system, which is characterized by a Eurocentric perspective that has often
marginalized the perspectives and experiences of non-European nations. This essay critically
examines the colonial origin of international law and the impact of post-colonialism on the
development of international law.
Colonial Origin of International Law:
The colonial era saw the expansion of European powers across the globe, with the
establishment of colonies and the imposition of European values and legal systems on non-
European nations. The concept of international law emerged during this era, as European
powers sought to regulate their relations with each other and with non-European nations.
However, the development of international law was largely driven by the interests of European
powers, which sought to maintain their dominance over non-European nations.
The Treaty of Westphalia in 1648, which established the modern system of nation-states, was
a pivotal moment in the development of international law. The treaty recognized the
sovereignty of European states and established the principle of non-intervention in the domestic
affairs of other states. This principle was used by European powers to justify their colonization
of non-European nations, as they claimed that they were spreading European values and
civilization to “uncivilized” nations.
Impact of Post-Colonialism on International Law:
The post-colonial era saw a growing awareness of the impact of colonialism on non-European
nations, and a rejection of the Eurocentric perspective that had dominated international law.
This rejection was driven by the struggle of non-European nations for independence and self-
determination, as well as by the growing recognition of the cultural and legal diversity of the
world.
Post-colonialism has had a profound impact on the development of international law, as it has
challenged the dominance of European legal traditions and perspectives. The UN Charter,
adopted in 1945, was a significant moment in the post-colonial era, as it established the
principle of the equality of states and the prohibition of the use of force. This principle
challenged the colonial-era concept of state sovereignty, which had been used to justify
European intervention in non-European nations.
The post-colonial era has also seen the emergence of new international legal norms and
institutions that reflect the perspectives and experiences of non-European nations. For example,
the International Criminal Court, established in 2002, seeks to hold individuals accountable for
crimes against humanity, war crimes, and genocide, regardless of their nationality. This reflects
a rejection of the colonial-era concept of immunity for officials of the colonial powers.
Conclusion:
In conclusion, the colonial origin of international law has had a profound impact on the
development of the modern international system, which is characterized by a Eurocentric
perspective that has often marginalized the perspectives and experiences of non-European
nations. However, the post-colonial era has seen a growing awareness of the impact of
colonialism on non-European nations, and a rejection of the Eurocentric perspective that
dominated international law in the colonial era. This has led to the emergence of new
international legal norms and institutions that reflect the perspectives and experiences of non-
European nations, and a more inclusive and diverse international legal system. The doctrine of
discovery and the principle of sovereignty were used to justify the subjugation of non-European
nations. Post-colonialism has led to the recognition of the legal rights of colonized peoples, the
legal pluralism of many societies, and the need for a more equitable and just international legal
system. The impact of post-colonialism on international law is still being felt today, and it will
continue to shape the development of international law in the future.
Ques: What is Public International law? Discuss the nature of International Law from
the perspective of third world countries.
Ans: Introduction:
Public International Law is a legal system that regulates the relations between sovereign states
and other international actors. It covers a wide range of issues, including human rights,
international trade, environmental protection, and the use of force. However, the nature of
International Law has been contested, particularly from the perspective of third world
countries.
Nature of International Law:
International Law is often described as a voluntary and consensual system, in which states are
free to choose whether or not to comply with its norms and principles. However, this
description does not reflect the reality of the international system, particularly from the
perspective of third world countries. The international system is characterized by power
imbalances, with developed countries often dominating the decision-making processes and
setting the agenda for international law.
The nature of International Law is also influenced by the principle of state sovereignty, which
grants states the exclusive right to govern their territories and populations. This principle has
been used by developed countries to justify their interventions in the affairs of third world
countries, often in violation of international law. For example, the doctrine of humanitarian
intervention has been used to justify interventions in the name of protecting human rights, but
often with little regard for the sovereignty and self-determination of the target countries.

Perspective of Third World Countries on International Law:

The perspective of third world countries on the nature of International Law is rooted in their
historical experiences of colonialism, imperialism, and economic exploitation by the developed
countries. Many third world countries view International Law as a system that has been created
and dominated by the developed countries to maintain their power and interests at the expense
of the developing countries.
From the perspective of third world countries, International Law has been used to legitimize
and perpetuate the unequal power relations between the developed and developing countries.
For instance, many third world countries view the International Monetary Fund (IMF) and the
World Bank as institutions that have imposed neoliberal economic policies on them, leading to
economic dependency and underdevelopment. Similarly, they perceive international trade law
as a system that favours developed countries at the expense of developing countries, with many
third world countries struggling to access developed markets for their goods and services.
Third world countries also view International Law as a system that is often applied selectively,
with developed countries being exempt from the same legal standards that they impose on
developing countries. This is evident in the areas of human rights and the use of force, where
developed countries have been accused of violating international law with impunity. For
instance, the United States and its allies have been criticized for their military interventions in
Iraq and Afghanistan, which were justified under the doctrine of humanitarian intervention, but
were widely seen as violations of international law.
From the perspective of third world countries, International Law should reflect the diversity of
the international community and should be based on the principles of equity and justice. They
argue that International Law should not be seen as a one-size-fits-all system, but rather as a
system that accommodates the different cultural, social, and economic contexts of the
developing countries.
Third world countries have been active participants in the development of International Law,
particularly in the areas of human rights, environmental protection, and international criminal
law. They have advocated for the recognition of economic, social, and cultural rights, and have
pushed for the inclusion of the principle of common but differentiated responsibilities in the
context of environmental protection. Third world countries have also played an active role in
the establishment of the International Criminal Court, which is intended to hold individuals
accountable for crimes against humanity, war crimes, and genocide.
In conclusion, the perspective of third world countries on the nature of International Law is
influenced by their historical experiences of colonialism, imperialism, and economic
exploitation by the developed countries. They view International Law as a system that
perpetuates unequal power relations between the developed and developing countries and that
is often applied selectively. However, third world countries have also played an active role in
shaping International Law and have advocated for a more diverse and inclusive system based
on the principles of equity and justice.
Conclusion:
In conclusion, Public International Law is a legal system that regulates the relations between
sovereign states and other international actors. However, its nature is contested, particularly
from the perspective of third world countries. The international system is characterized by
power imbalances, and the principle of state sovereignty has been used to justify interventions
in the affairs of third world countries. Nonetheless, third world countries have played an active
role in shaping International Law, particularly in the areas of human rights and environmental
protection.
Ques: Enumerate and explain the significance and importance of different sources of
International Law. What, according to you, is the most effective source of International
Law in the present times?
Ans: Introduction:
International law is a complex system of rules and principles that regulate the relationships
between sovereign states and other international actors. To understand how international law
is created and enforced, it is essential to examine its various sources. In this essay, we will
explore the significance and importance of different sources of international law and determine
which source is most effective in the present times.
Sources of International Law:
International law has several sources that provide the basis for its creation and enforcement.
These sources include treaties, customary law, general principles of law, judicial decisions, and
academic writings.
Treaties:
Treaties are written agreements between states that create legal obligations and rights. They
are the most important source of international law and are widely used to regulate different
aspects of international relations. Treaties can cover various issues such as trade, human rights,
disarmament, and the environment. They provide a framework for cooperation and
coordination between states and create legally binding obligations and rights. Moreover,
treaties can be adapted and amended to reflect changing circumstances and evolving
international norms and practices.
Customary Law:
Customary law is a set of unwritten rules and practices that have been accepted by states as
binding. It reflects the values and practices of the international community and is often used to
fill gaps in treaty law. Customary law is important because it is binding on all states, regardless
of whether they have ratified specific treaties. Examples of customary law include the
prohibition of torture, the principle of non-intervention, and the obligation to protect the
environment.
General Principles of Law:
General principles of law refer to basic legal principles and concepts that are recognized by
legal systems around the world. They include principles such as fairness, equity, and natural
justice. General principles of law are significant because they provide a foundation for the
development of international law and are often used to interpret and apply other sources of law.
For instance, the principle of good faith is a general principle of law that is often used to
interpret the provisions of treaties.
Judicial Decisions:
Judicial decisions, including those of international tribunals and courts, are significant because
they provide authoritative interpretations of international law. Judicial decisions also help to
clarify the meaning of legal norms and principles and can contribute to the development of
customary law. For instance, the decisions of the International Court of Justice have clarified
the principles of state responsibility and the law of the sea.
Academic Writings:
Academic writings, including legal scholarship and commentaries, are important because they
provide a forum for the analysis and interpretation of international law. Academic writings can
influence the development of legal norms and principles and can provide guidance to states
and other international actors. For instance, the works of legal scholars have contributed to the
development of human rights law and international criminal law.
Most Effective Source of International Law:
The most effective source of international law in the present times is treaty law. Treaties are
widely used to regulate various aspects of international relations and are the most important
source of international law. Treaties provide a framework for cooperation and coordination
between states and create legally binding obligations and rights. Moreover, treaties can be
adapted and amended to reflect changing circumstances and evolving international norms and
practices. The effectiveness of treaty law is demonstrated by the significant progress made in
areas such as human rights, disarmament, and the environment through the adoption of
international treaties.
Conclusion:
In conclusion, the sources of international law are essential for understanding the creation and
enforcement of international legal norms and principles. Treaty law is the most effective source
of international law in the present times because treaties provide a framework for cooperation
and coordination between states and create legally binding obligations and rights. However,
customary law, general principles of law, judicial decisions, and academic writings also play a
vital role in the development and interpretation of international law.