QUESTION 2
Most of the International legal jurists in their theorists agree that states’ sense of obligation
toward international law is a necessary component for the functioning of the international legal
system. However, some of the Jurists is of the opinion to disagree about the foundation of where
these senses of obligation generate.
2.1 Based on Lotus’s case, international law governs relations between independent states. The
rules of law binding upon States therefore emanate from their own will as expressed in
conventions or by usages generally accepted as expressing principles of law established in order
to regulate the relations between co-existing independent communities or with a view to the
achievement of common aims. States can do whatever they want as long as it doesn’t affect
international law. (history). Atlantic charter – new world order signed. Based on 3 pillars. 1st
restraint force. 2nd human rights. 3rd economic law.
International Law is a body of rules and principles of action which are binding upon civilized
states in their relation to one another. A law which deals with the conduct of the states and of
international organizations and with their relations inter se, as well as with some of their relations
with persons, whether natural or juridical. According to Article 1 of UN, the international law
existed as to harmonize the nations.
Responsibility arises from the breach by a State of an international obligation. According to Art.
1, every internationally wrongful act of a State entails the international responsibility of that
State. For example, failure to honour a treaty; violates the territorial sovereignty of another State;
damages the territory or property of another State. According to Art. 2, there is an internationally
wrongful act of a State when such conduct. It is attributable to the State under international law,
and constitutes a breach of an international obligation of the State.
Thus, in order for the principle of state responsibility to be invoked, it must first be determined
whether there was an internationally wrongful act.
Attribution of conduct to the State is dependent on the entity committing such conduct, which is
conduct of State organs or officials. According to Art. 4(1), the conduct of any State organ is
considered an act of that State under international law. The ICJ in Immunity from Legal Process:
It is a rule of customary character for the conduct of any organ of a State to be regarded as an act
of that State. - Art. 4(2): An organ includes any person or entity which has that status in
accordance with the internal law of the State.
Next is, ultra vires acts of State organs. Based on Art. 7, the conduct of an organ of a State or
of a person or entity empowered to exercise elements of the governmental authority shall be
considered an act of the State under international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes instructions.
Furthermore, conduct of persons directed or controlled by a State. Based on Art. 8, the
conduct of a person or group of persons shall be considered an act of a State under international
law if the person or group of persons is in fact acting on the instruction of, or under the direction
or control of that State in carrying out the conduct. Acting on the instruction of the State: When
State organs supplement their own action by recruiting private persons or groups to commit an
act. - Zafiro case: The US was held responsible for looting by the civilian crew of a merchant
vessel, employed as a supply vessel by American Naval forces during the US war with Spain
under the command of a merchant captain, who in turn was under the orders of an American
Naval officer.
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2.2 Outline both conflicting view side by side as a brief debate forum.
There are different view regarding municipal law and international law. In International Law the
International Court of Justice acts as judiciary, but the decision of the Court is binding upon the
parties to the litigation who have submitted themselves to the jurisdiction of the International
Court
of Justice. However, in Municipal Law judiciary is all Pervasive.
International is considered as a weak law in comparison to Municipal Law only from the
positivist
point of view. However, municipal Law is the stronger law from the positivist point of law.
Next, In International Law treaties, conventions, customs, general principles of law are the
primary
sources of it. In Municipal Law the source of it is legislation.
Court administration in International Law gives effect to a law which is laid down not by any
State
but originates from State law making treaties, declaratory treaties, customs usages and decisions
of the International Court of Justice. In Municipal Law Court is bound by the law laid down by
the sovereign States for its enforcement.
International Law has to be adopted and incorporated in the legal system of a State; they cannot
be directly applied in the field of Municipal Law There is no such requirement in the case of
Municipal Law. Laws made in the field of Municipal Law get directly incorporated in the legal
system of a State.
International Law is the law of nations, regulating the relations between the member States of the
family of nations. Municipal Law is the law of State regulating the conduct of individuals and
deal
with the relation between individual and the State
