This article is written by Maturi Krishna Keerthana of 4th Semester of BBA LLB of ICFAI Law School, Hyderabad
ABSTARCT:
This article mainly focuses on what is domestic laws what are its procedures and the applicability and a detailed information of international laws when international laws are applied and mainly deals with the difference between the Indian legislation and international legislation
Keywords: domestic law, international law, international legislation, national legislation, legal system, treaties.
INTRODUCTION:
Domestics law will prevail over international law but most of the domestics law are adapted from the various international laws the relation between this national law and international law is ambiguous with this article we will get clear about the relation between national and international legislations this paper give a brief knowledge of what is international law which is the law that covers the disputes between two countries and desl with marine related issues and what is national law also called as domestic law and who enacts these laws what is the procedure for encating a law the detailing of international include the elements of international law and sources of international law with the references of some articles I wrote some relation between national and international legislation and domestic legislation and at last the paper gets concluded with the differences between international legislation and national legislation
What are international laws?
International legislation is nothing but it applies to all the countries when a dispute is in common to the counties like marine disputes or disputes relating to two nations the international legislations come into picture
International law refers to a general collection of rules or concepts that aid in the resolution of international issues such as laws of the sea, disputes between nations, which portion of the land belongs to which country, how to maintain international behaviour, and so on. However, it should be remembered that international laws are a uniform set of norms that apply to all countries. As a result, it is up to each country to determine how to implement these standards and establish legislation in their own countries.
The elements of International Law:
1.States
The international legal system is dominated by states. States implant international legal ideas and incorporate them into domestic legislation. The International Court of Justice and comparable bodies can only be joined by states. The United States must constantly evolve. To maintain international connections, nations must be acknowledged by other governments. The establishment of newly acknowledged states has the potential to shift the balance of power and smooth the course of international affairs.
2.International organization
States establish international bodies to maintain the balance of international relations. The United Nations, for example, was a cooperative effort of governments to maintain peace after World War II. Each international institution is subject to a variety of obligations and duties under international law. The International Court of Justice, one of the core United Nations bodies, has the jurisdiction to adjudicate state activities under international law.
3. individuals role
Individuals have an important influence in the evolution of the international legal system. persons are not included in the legal criteria established in international law, but the obligations indicated for States indirectly apply to persons because a happy individual means a happy State. Individuals are bound to a certain state by their nationality. Nationality can be acquired by birth, acquisition, naturalisation, or other causes. Each state has its own rules for getting citizenship. [1]
International Law Sources:
Treaties:
Treaties are the most common form of international law norms. Treaties are also known as conventions, accords, standards, and other terms. Treaties were the only source of hope during times of conflict. Other treaties, such as the Treaty of Versailles, have, on the other hand, provoked disputes. The Vienna Convention on the Law of Treaties (1969) was founded following the war. This Convention is sometimes referred to as treaty law. It goes into every detail of how treaties should be written. The important thing to note here is that all treaties only bind the governments and not any third party.
Customs:
Two countries respect each other’s customs while maintaining international ties. Custom is a practise that has been recognised as law by governments throughout history. All states are subject to customary law rules. In most situations, the key contributors to the formation of a new custom are the states. During the Cold War, for example, the United States and the Soviet Union devised new space laws. The International Court of Justice (ICJ) frequently mentions customs in its rulings.
The International Law Commission:
The United Nations International Law Commission was established in 1948. The ILC consists of thirty-four members. The primary responsibility of the ILC is to codify international laws. The International Law Commission draughts articles for international laws and sends them to the United Nations General Assembly for consideration as a draughts convention over time.
General principles of law:
Because many states acknowledge basic principles, they are an important source of international law. Treaties do not always resolve international disputes. When treaties are not provided for, generic principles are used. General ideas are shared by all legal systems. These fundamental notions include things like good faith, judicial impartiality, laches, and other generic principles.[2]
What is national law?
National law, also known as domestic law, refers to laws that apply to a specific country or state. Some of these laws are based on judicial rulings or case law, whereas other jurisdictions do not recognise judge-enforced legislation. In most cases in the United States, Congress enacts these laws, which must be approved by the President of the United States in order to be legal. However, states can establish their own laws that differ from federal ones.[3]
The cornerstone of India’s present legal system is legislation, often known as statutory law. The legislature’s creation and imposition of statutes serves as the foundation for statutory legislation. A law is a formal written act of the Legislature. Legislation, is not a struggle between ideological opponents, but rather an honest pursuit of the best governing laws for our community. A wise legislator recognises that it cannot forecast all future developments impacted by its law and may opt to give responsibility adapt its directions to the conditions of adjudication.[4]
Procedure for enacting a national law:
Step 1: The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.
Step 2: The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’. The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. For example, recently, the UIDAI has invited public feedback on the Draft National Identification Authority Bill. Following this, the draft is revised to incorporate such inputs and is then whetted by the Law Ministry. It is then presented to the Cabinet for approval
Step 3: After the Cabinet approves the Bill, it is introduced in Parliament. Under the Indian political system, the Parliament is the central legislative (or law making) body. Every Bill goes through three Readings in both Houses before it becomes an Act.
Step 4: After both Houses of Parliament pass a Bill, it is presented to the President for assent. She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration. (This may be done only once. If both Houses pass the Bill again, the President has to assent.)
Step 5: After the President gives assent, the Bill is notified as an Act. Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.
Indian and international legislation:
India has signed a number of international treaties and conventions on human rights, environmental law, trade law, space law, intellectual property law, and other issues. International law enforcement in India may be seen from two perspectives: international law associated to treaties and conventions and international law related to international customs.
Because we follow a dualist worldview, we must study the enforcement of international laws in India from two distinct perspectives. India follows a dualist interpretation of international law, which holds that treaties and conventions cannot be invoked unless they are first incorporated into the country’s domestic laws.
Article 27 of the Vienna Convention on the Law of Treaties, 1969, states unequivocally that a state is bound to honour its international obligations even if it means changing its domestic law. If a dispute arises between domestic and international law, it is the court’s obligation to reconcile the two and establish how far the state’s constitution allows for international law to be implemented.
In light of Article 51 of the Indian Constitution, the courts have concluded that India is a party to these international standards and that, as such, international conventions and treaties should be adopted in good faith. Unless the Indian Constitution is amended, these conventions and treaties are likely to be automatically incorporated into domestic laws.
If the Indian Constitution is changed, these treaties and conventions will not be immediately incorporated into domestic law. It should be noted that Customary International Law is not automatically incorporated into local legislation. Our courts play an important role in implementing international law in India. Article 51 of the Indian Constitution compels the country to maintain friendly and peaceful relations with various foreign countries.
It should be noted that it is not enforceable because it is a Directive Principle of State Policy. Article 51 Clause (c) states that India shall follow international law, and Clause (d) states that if a disagreement or conflict arises between India and another foreign authority, it must be resolved amicably.
The Indian Parliament is empowered under Article 253 of the Indian Constitution to create laws pertaining to international law in India. Such law must be approved by the President before it can take effect. Parliament has the authority to carry out such international law acts, treaties, and conventions. It should be underlined that this authority is to be utilised alone by Parliament, with no input from the states.
Although the Indian legal system lacks the jurisdiction to execute international law in the country, it actively resorts to these rules for judicial interpretation and decision-making in situations of international conflicts, notably those concerning human rights and environmental law. Nonetheless, notwithstanding the Indian judiciary’s progressive approach and the active engagement of Indian laws in developing international law, there is a lack of synchronisation between domestic and international law.[5]
Difference between international legislation and national legislation:
International law is applied by entities and professionals in situations involving contacts between two or more countries, whereas domestic law focuses on county and state laws inside a single country.
States can opt not to ratify or ratify certain international law norms through treaties and conventions, however individuals who violate any element of national law are frequently sanctioned.
National laws can be developed within a country by legislative, judicial, and executive agencies, but no one organisation or supervisory agency creates all sets of international laws.
International law applies to all countries that seek to sign treaties and accords, whereas experts apply national law in relationships inside a single country, such as the United States.
International law controls the behaviour and conduct of nations under international governing organisations, whereas national law rules only the behaviour and conduct of people inside a given country.
International law restrictions cannot be implemented in any country, but Congress, for example, has the authority to carry out national laws across the whole United States.
International law has jurisdiction over all international countries that participate in the development of such legislation, whereas national law has power only inside one country.
International law focuses on conventions and treaties, whereas national law focuses on acts and constitutions inside a specific state or country.[6]
Conclusion:
International law is a set of principles that countries must follow in order to ensure national security and peace. An individual or a nation/state may be the subject of an issue under international law. Furthermore, it has emerged from a multitude of sources, as stated in Article 38 of the ICJ statute, which states that customs, treaties, and general principles are regarded as the foundation of International Law. International law exists to preserve international order and peace, to resolve various conflicts between various nations/states and individuals, and to provide basic rights. However, there are a number of faults that continue to impair international relations.
[1] The relationship between national and international law: an analysis available at: https://blog.ipleaders.in/relationship-national-international-law-analysis/ (last visited on June 05 2023)
[2] The relationship between national and international law: an analysis available at: https://blog.ipleaders.in/relationship-national-international-law-analysis/ (last visited on June 05 2023)
[3] International Law vs. National Law: What’s the Difference? Available at: https://www.indeed.com/career-advice/career-development/international-law-vs-national-law#:~:text=International%20law%20relates%20to%20the,persons%20within%20a%20particular%20nation. (last visited on June 05,2023)
[4] Legislation & Common Law: Indian Legal System available at: https://www.legalservicesindia.com/article/587/Legislation-&-Common-Law-:-Indian-Legal-System.html#:~:text=Legislation%2C%20also%20known%20as%20statutory,the%20will%20of%20the%20Legislature. (Last visited on June 05 2023)
[5] International Law Enforcement in India available at: https://legalserviceindia.com/legal/article-7803-international-law-enforcement-in-india.html#:~:text=India%20follows%20a%20dualist%20theory,laws%20in%20the%20first%20place.
[6] International Law vs. National Law: What’s the Difference? Available at: https://www.indeed.com/career-advice/career-development/international-law-vs-national-law#:~:text=International%20law%20relates%20to%20the,persons%20within%20a%20particular%20nation. (last visited on June 05,2023)
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