The definition and binding force of International Law have generated significant academic debate among legal positivists and naturalists.
1. Definition and Nature: The Juristic Character
- John Austin's Positivist Critique: Austin defined law as the command of a sovereign backed by sanctions. Since there is no supreme international legislature, executive, or centralized sanction, Austin classified International Law as "Positive International Morality" rather than true law.
- Oppenheim and Starke's Defense: They argued that international law is true law because states recognize its binding nature, frequently justify their actions under its rules, and resolve disputes through legal arguments rather than pure force. (The lack of a centralized executive does not negate its legal character; it is a decentralized, coordinate legal system).
2. Monism vs. Dualism
| Monism (Kelsen, Lauterpacht) | Dualism (Triepel, Anzilotti) |
|---|---|
| Views International Law and Municipal Law as a single, unified legal system. | Views them as two distinct, separate legal systems operating on different planes. |
| International law is supreme and is automatically applicable in domestic courts without conversion. | International law can only be applied domestically if it is translated/incorporated by an act of parliament. |
| Governs the single legal community of mankind. | Municipal law governs individuals; International law governs relations between sovereign states. |
3. Indian Practice (Article 51)
India follows a Dualist approach regarding treaties. Under Article 253 of the Constitution, Parliament has exclusive power to make laws for implementing international treaties.
📜 Landmark Case: Jolly George Varghese v. Bank of Cochin (1980)
The Supreme Court held that international covenants (like Article 11 of the ICCPR protecting debtors from imprisonment) do not automatically become part of Indian municipal law. They only hold binding authority in domestic courts once incorporated through legislative enactment by Parliament. However, courts will read domestic statutes in harmony with international obligations wherever possible.