Similarities _ Differences between International law _ Municipal law

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Similarities _ Differences between International law _ Municipal law Powered By Docstoc
					Overview Similarities and Differences between InternLaw : An
Overview Sssimi

             MUNICIPAL LAW

                                                               KARAN SHETTY

Law is a system of rules and guidelines which are enforced through
social institutions to govern behaviour. It shapes politics, economics
and society in numerous ways and serves as a social mediator of
relations between people.

In matters of world-wide concern, it is international law that
determines the responsibilities and obligations of each State,
organisation or individual. In the past 50 years, the world has become
even more interconnected with the huge leaps in communication and
technology, and a growing dependency on other countries for
resources and services. International law is both necessary and
important for international cooperation at every level.

International law is the set of rules generally regarded and accepted
as binding in relations between states and nations. It differs from
national legal systems in that it only concerns nations rather than
private citizens. National law may become international law when
treaties delegate national jurisdiction to supranational tribunals such
as the European Court of Human Rights or the International Criminal
Court. Treaties such as the Geneva Conventions may require national
law to conform.

The term "international law" can refer to three distinct legal

      Public international law, which governs the relationship between
       provinces and international entities. It includes these legal
       fields: treaty law, law of sea, international criminal law and the
       laws of war or international humanitarian law.
      Private international law, or conflict of laws, is a body of law
       developed to resolve private, non-state disputes involving more
       than one jurisdiction or one foreign law element. which
       addresses the questions of (1) which jurisdiction may hear a
       case, and (2) the law concerning which jurisdiction applies to
       the issues in the case.

Karan Shetty                                                       Page 1
      Supranational law or the law of supranational organizations,
       which concerns regional agreements where the laws of nation
       states may be held inapplicable when conflicting with a
       supranational legal system when that nation has a treaty
       obligation to a supranational collective.

The two traditional branches of the field are:

      jus gentium : is the body of treaties, U.N. conventions, and
       other international agreements [law of nations] – Law is
       common to all nations
      jus inter gentes: agreements between nations

Sources of International Law
It is generally accepted that Article 38 of the Statute of the
International Court of Justice is a complete statement of the sources of
international law. Article 38 describes the following four sources:


The Vienna Convention on the Law of Treaties (1969) describes
treaties as international, written agreements made between States that
are governed by international law. The term, treaty, includes
arrangements, protocols, covenants, conventions and agreements.
Every treaty acts in the same manner as a contract between all the
parties signing the treaty. Being a written contract, States that are
party to a treaty can identify what has been agreed and what
obligations are owed by each party and to whom.

Treaties between two States are referred to as bilateral or bipartite
treaties while treaties between more than two States are referred to as
multilateral or multipartite treaties the treaties which have attracted
the largest numbers of parties are called universal.

Karan Shetty                                                      Page 2
Only States and international organisations may become parties to
international treaties. As a corollary to this, treaties apply in the first
place to States and to State policy. A State may be able to modify its
obligations under a treaty by making a reservation at the time it signs,
ratifies, accepts, approves or accedes to a treaty.

The Vienna Convention which consists of 85 articles, eight parts and
an annex includes and materializes five fundamental legal principles

Free consent and good faith (bona fide in Latin) are the leading
principles which ought to be always followed by States in the course
of their relations with one another

The other major principles which also emanate from the Roman Law
tradition apply in particular

     - pacta sunt servanda

[Latin, Promises must be kept.] An expression signifying that the
agreements and stipulations of the parties to a contract must be

  - omnia conventio intelligitur rebus sic stantibus (Latin "things thus
standing") is the legal doctrine allowing for treaties to become
inapplicable because of a fundamental change of circumstances.

 - favor contractus (it is better to seek the maintenance rather than the
termination of a treaty)

Customary international law is not initially written down as law but
develops into law with practice over time and it describes general

Karan Shetty                                                         Page 3
practices accepted as law by States. The development of customary
international law is an ongoing process, making it more flexible than
law contained in treaties. The task of identifying or describing
customary international law, involves consideration of the following
    the degree of consistency and uniformity of the practice;
    the generality and duration of the practice;
    the interests of specially affected States; and
the degree to which the States who adopt the practice do so from a
recognition that the practice is required by, or consistent with
prevailing international law. The shorthand for the belief that the
practice is required by law is opinion juris et necessitates, Latin
phrase.. This last element requiring the belief that something is legally
obligated sets it apart from other behaviours between States which are
merely due to courtesy, tradition or convenience.

Jus cogens

International law also contains certain rules referred to as jus cogens
or peremptory norms. These norms reflect law that is so fundamental
that no State can ignore it or attempt to contract out of it by a
subsequent treaty. Jus cogens has been called the public policy of
international law. The Vienna Convention on the Law of Treaties
defines peremptory norms as those norms “accepted and recognised
by the international community of States as a whole” and from which
“no derogation is permitted and can only be modified by a subsequent
norm of international law having the same character”. The norms
generally accepted as being jus cogens are genocide, piracy, slavery,
and torture. In principle, all States are prohibited from these actions;
in practice, this is the world that is aspired to. Jus cogens in Latin this
means ‘compelling law’ and refers to so called ‘peremptory norms’ of
general international law.


Karan Shetty                                                         Page 4
The International Court of Justice ( ICJ) is directed to consider ‘the
general principles of law recognised by civilised nations’ in its
decision making: the ICJ use methods and doctrines of domestic legal
decision making to the extent that they are useful in addressing the
questions before the Court, to develop an international judicial
method. The preferable view seems to be that international tribunals
use domestic law selectively where situations are comparable to make
the administration of international law work.


The Statute of the International Court of Justice says that the Court
shall apply judicial decisions and the teachings of the most highly
qualified publicists as ‘subsidiary means for the determination of rules
of law’: The International Court of Justice (ICJ) is the main court of
the UN and its decisions identify and articulate international law rules
based on treaty, custom, general principles of law, judicial decisions
of international and national courts and tribunals, and the writings of

Municipal law is the national, domestic, or internal law of a sovereign
state defined in opposition to international law. Municipal law
includes not only law at the national level, but law at the state,
provincial, territorial, regional or local levels. While, as far as the law
of the state is concerned, these may be distinct categories of law,
international law is largely uninterested in this distinction and treats
them all as one. Similarly, international law makes no distinction
between the ordinary law of the state and its constitutional law.

Article 27 of the Vienna Convention on the Law of Treaties provides
that, where a treaty conflicts with a state's municipal law (including
the state's constitution), the state is still obliged to meet its obligations

Karan Shetty                                                           Page 5
under the treaty. The only exception to this rule is provided by Article
46 of the Vienna Convention, where a state's expression of consent to
be bound by a treaty was a manifest violation of a "rule of its
internal law of fundamental importance.”


It is important to understand how international law principles become
part of domestic law, and to explain what happens if the rules conflict.
The theories of monism and dualism are the two main theories that
explain the relationship between international and municipal law.

In this theory, all law is part of a universal legal order and regulates
the conduct of the individual State. The difference in the international
sphere is that the consequences are generally attributed to the State.
Since all law is part of the same legal order, international law is
automatically incorporated into the domestic legal order. Some monist
theorists consider that international law prevails over domestic law if
they are in conflict; others, that conflicting domestic law has some
operation within the domestic legal system.

This theory holds that international law and domestic law are separate
bodies of law, operating independently of each other. Under dualism,
rules and principles of international law cannot operate directly in
domestic law, and must be transformed or incorporated into domestic
law before they can affect individual rights and obligations.
The main differences between international and domestic law are
thought to be the sources of law, its subjects, and subject matter.
International law derives from the collective will of States, its subjects
are the States themselves, and its subject matter is the relations
between States. Domestic law derives from the will of the sovereign

Karan Shetty                                                        Page 6
or the State, its subjects are the individuals within the State, and its
subject matter is the relations of individuals with each other and with

Neither monism nor dualism can adequately explain the relationship
between international and domestic law, and alternative theories have
developed which regard international law as having a harmonisation
role. If there is a conflict, domestic law is applied within the domestic
legal system, leaving the State responsible at the international level
for any breach of its international law obligations


International law is concerned with the rights and duties of States in
their relations with each other and with international organisations.
Domestic (municipal or national) law, the law within a State, is
concerned with the rights and duties of legal persons within the State.
International law differs from domestic law in two central respects:

1. The law-making process

There is no supreme law-making body in international law. Treaties
are negotiated between States on an ad hoc basis and only bind States
which are parties to a treaty. The General Assembly of the United
Nations is not a law-making body, and so its resolutions are not
legally binding. However, UN Security Council resolutions to take
action with respect to threats to peace, breaches of the peace, and acts
of aggression, are binding on the 192 member States. In Australia,
domestic law is parliaments of the Commonwealth, states and
territories, and by common law principles developed by the courts.
Parliaments are the supreme law making bodies with power to make
the laws, while courts are empowered to interpret the law and apply it
to individual cases.

Karan Shetty                                                       Page 7
2. Enforcement

International law has no international police force to oversee
obedience to the international legal standards to which States agree or
that develop as international standards of behaviour. Similarly, there
is no compulsory enforcement mechanism for the settlement of
disputes. However, there are an increasing number of specialised
courts, tribunals and treaty monitoring bodies as well as an
International Court of Justice. National laws and courts are often an
important means through which international law is implemented in
practice. In some instances, the Security Council can authorise the use
of coercive economic sanctions or even armed force. For example, in
1990 – 91 when Iraq invaded and occupied Kuwait the international
community used armed force to enforce international law (resolutions
of the Security Council). Subsequent controversy about the use of
armed force against Iraq highlights how difficult it can be to obtain
the necessary authorisation from the Security Council under the
United Nations Charter. In international law, that is the only
legitimate way that collective armed force can be used.

There are key substantive differences between
international law and municipal law


International law is horizontal - Municipal law is hierarchical or
all states are sovereign and equal vertical - the legislature is in a
                                   position of supremacy and enacts
                                   binding legislation

Adopted by states as a common Issued by a particular political
rule of actions among themselves superior for the observance of of
                                 those under the authority within a

Karan Shetty                                                     Page 8
Derived from customs and Enactment from the law-making
traditions,        international body authority
dimensions, general principles
including treaties

Governs the relationship between Governs the relationship between
and among states                 the individuals and the state
                                 If there is a violation of a
Produces collective liability in municipal law, the aggrieved
case of violations and sanctions party will avail administrative and
are for the state itself         judicial processes within the state.
                                 Entails individual liability

What are similarities between Domestic Law and
International Law?
      Domestic law is the statutes and (to a lesser degree) regulations
      of a particular country which explain how to interpret the
      statutes of that country or its subdivisions. International law is
      what is called a "treaty," and usually does not directly create a
      crime or create or prohibit anything by individuals. Instead a
      treaty or "international law" sets an obligation of a country that
      is a signatory to the treaty to make a domestic law which does
      something related to that treaty. This can make certain actions
      illegal, prohibit or require something to be done, or set standards
      for certain practices.

      Typically, violation of international law carries no penalties; it is
      only the domestic law of the jurisdiction where the person is
      from (if they are outside of a country) or the jurisdiction where
      the act was committed that determines whether a crime was or
      was not committed.

Aviation Law

Karan Shetty                                                         Page 9
Aviation Law is a highly specialized field of law encompassing most
facets of air travel, as well as the operation and regulation of business
issues relating to air travel, which requires a comprehensive
knowledge of FAA regulations, specific laws regarding flight, and an
in depth understanding of aviation. Aviation law pertains to nearly all
individuals connected to the operation and maintenance of aircraft.

Most aspects of aviation law fall under the oversight of the Federal
Aviation Administration (FAA). Although, air traffic regulation
polices, laws and administrative agencies have been created by both
federal and state government, with certain restrictions preventing
states from regulating routes, services, or the rates of all air carriers
authorized to provide interstate air transportation by the Federal
Aviation Act. States may alter existing remedies and enact state laws
consistent with federal mandate, Additionally, Federal law does not
prompt state products liability law, and more often, aviation
manufacturers may be held strictly liable.

      ABA Forum on Air and Space Law

       The Forum on Air and Space Law is the link to vital and timely
       information in the aviation arena. This forum represents all areas
       of air and space law including airlines, airports, labour, financial
       communities, the FAA, DOT, NASA, litigation and antitrust

      Air Transportation Regulatory Reform Act of 1978

       An Act to amend the Federal Aviation Act of 1958, to
       encourage, develop, and attain an air transportation system
       which relies on competitive market forces to determine the
       quality, variety, and price of air services, and for other purposes.

      Airport and Airway Development Act of 1970

Karan Shetty                                                        Page 10
       The Secretary shall take affirmative action to assure that no
       person shall, on the grounds of race, creed, colour, national
       origin, or sex, be excluded from participating in any activity
       conducted with funds received from any grant made under this

      Aviation and Transportation Security Act of 2001

       The Transportation Security Administration shall be an
       administration of the Department of Transportation. The head of
       the Administration shall be the Under Secretary of
       Transportation for Security. The Under Secretary shall be
       appointed by the President, by and with the advice and consent
       of the Senate.

      Civil Aeronautics Act of 1938

       Under the Civil Aeronautics Act (52 Stat. 973), June 23, 1938,
       as modified by Reorganization Plans Nos. III and IV of 1940;
       and as redefined by the Federal Aviation Act of 1958 (72 Stat.
       731), August, 23, 1958, promoted and regulated the civil air
       industry within the United States and between the United States
       and foreign countries in the interest of the foreign and domestic
       commerce of the United States, the postal service, and the
       national defence.

      Federal Aviation Act of 1958

       Federal Aviation Act of 1958, as amended, involving an amount
       in controversy in excess of $50,000; an in rem action; seizure of
       aircraft; or injunctive relief and whose mission is to provide the
       safest, most efficient aerospace system in the world.

Karan Shetty                                                      Page 11
   Aviation Law - International
       Australian Aviation Policy & Regulation

      The primary role of the Aviation and Airports Division is to
      advise the Government on the policy and regulatory framework
      for the Australian aviation and airports industries. The Division
      manages the continuing relationship between the Government
      and the Civil Aviation Safety Authority (CASA), Air services
      Australia (Air services) and Australia's airlines. It also manages
      Australia's participation in the work of the International Civil
      Aviation Organisation (ICAO) and provides the secretariat for
      the International      Air Services Commission (IASC).

       Aviation Regulations & EU Air Transport Policy (Code

         The objectives are: * Understand how air transportation is
         being transformed by market economies, liberalization of air
         routes, technological changes, commercialization of aviation
         activities as well as by the EU air transport framework.

       Canadian Aviation Regulations (CARs)

         The Canadian Aviation Regulations are a compilation of
         regulatory requirements designed to enhance safety and the
         competitiveness of the Canadian aviation industry. They
         correspond to the broad areas of aviation which Transport
         Canada, Civil Aviation is mandated to regulate (e.g.
         personnel licensing, airworthiness, commercial air services,

       Civil Aviation Authority (CAA) in the United Kingdom

         These directions are hereby given to the Civil Aviation
         Authority ("the CAA") by the Secretary of State for the
         Environment, Transport and the Regions in exercise of the
         powers conferred by Section 66(1) of the Transport Act 2000
         ("the Act").

Karan Shetty                                                     Page 12
         These directions are given in respect of that airspace
         comprising all airspace of the United Kingdom and all
         airspace outside the United Kingdom for which the
         Government of the United Kingdom has assumed
         responsibility under international arrangements (together
         "UK airspace").

       Convention for the Unification of Certain Rules for
        International Carriage by Air

         This Convention applies to all international carriage of
         persons, baggage or cargo performed by aircraft for reward. It
         applies equally to gratuitous carriage by aircraft performed by
         an air transport undertaking.

       Ireland Aviation Regulation & International Relations

         Functions: 1. Developing policies for the Irish aviation sector
         that maximise its contribution to the economy, in addition to
         developing aviation sector safety and environment policies. 2.
         Facilitating and encouraging as wide a range as possible of
         reliable, regular and competitive commercial air services for
         Irish tourism, trade and industry. 3. Representing Irelands
         position in Brussels in the formulation of EU aviation
         legislation and policy. The Division also transposes EU
         Regulations and Directives into Irish law, implements
         International Aviation Conventions, and formulates policy in
         response to developments in international aviation; 4.
         Administering and issuing authorisations and traffic rights for
         commercial civil aviation flights into and out of Ireland,
         including the granting of exemption from the prohibition on
         the carriage of munitions of war and dangerous goods; 5.
         Administration of existing bilateral Air Service Agreements
         with Non-EU third countries. 6. Liaising with the Irish
         Aviation Authority on aviation safety and a range of other

Karan Shetty                                                     Page 13
        UK Civil Aviation Authority

         The Civil Aviation Authority (CAA), which is a public
         corporation, was established by Parliament in 1972 as an
         independent specialist aviation regulator and provider of air
         traffic services. The CAA is the UK's independent specialist
         aviation regulator. Its activities include economic regulation,
         airspace policy, safety regulation and consumer protection.
         The UK Government requires that the CAA’s costs are met
         entirely from its charges on those whom it regulates. Unlike
         many other countries, there is no direct Government funding
         of the CAA’s work.

       Aerospace Law
       Aerospace or Space Law is a highly specialized area of law and
       deals with international agreements as well as national policies
       regarding the use of outer space by all nations including treaties
       regarding the International Space Station and Liability in Outer

       Aerospace Law - International

      Agreement on the Rescue of Astronauts, the Return of
       Astronauts and the Return of Objects Launched into Outer

   The Agreement entered into force in December 1968. The
   Agreement, elaborating on elements of articles 5 and 8 of the Outer
   Space Treaty, provides that States shall take all possible steps to
   rescue and assist astronauts in distress and promptly return them to
   the launching State, and that States shall, provide assistance to
   launching States in recovering space objects that return to Earth
   outside the territory of the Launching State.

Karan Shetty                                                      Page 14
      Convention on International Liability for Damage Caused
       by Space Objects

       The Convention entered into force in September 1972.
       Elaborating on Article 7 of the Outer Space Treaty, the Liability
       Convention provides that a launching State shall be absolutely
       liable to pay compensation for damage caused by its space
       objects on the surface of the Earth or to aircraft, and liable for
       damage due to its faults in space. The Convention also provides
       for procedures for the settlement of claims for damages.

      Convention on Registration of Objects Launched into Outer

       The Convention was opened for signature on 14 January 1975
       and it accounts the report of the Committee on the Pacific Uses
       of Outer Space

      Outer Space Treaty

       The Treaty was largely based on the Declaration of Legal
       Principles Governing the Activities of States in the Exploration
       and Use of Outer Space, which had been adopted by the General
       Assembly in its resolution 1962 (XVIII) in 1963, but added a
       few new provisions

      Treaty on Principles Governing the Activities of States in the
       Exploration and Use of Outer Space

       The Treaty on Principles Governing the Activities of States in
       the Exploration and Use of Outer Space, Including the Moon
       and Other Celestial Bodies, which is usually called the Outer
       Space Treaty, is one of the most significant law-making treaties
       concluded in the second half of the twentieth century. It was
       adopted by the United Nations General Assembly on 19
       December 1966.

Karan Shetty                                                      Page 15
Aviation Accident Law - Aircraft Injury Law
Aviation Safety Laws cover a broad spectrum of issues including
airline liability, pilot certifications, airworthiness of aircrafts and
product liability to name a few. Aviation Accidents are investigated
by the National Transportation Safety Board (NTSB)

      Warsaw Convention - Airline Liability

The first international convention pertaining to liability in
international air transportation, the Convention prescribes rules for air
carrier liability in case of death or injury to passengers, destruction,
loss or damage to baggage, and losses resulting from delay of
passengers, baggage and cargo. Liability limits set by the Convention
were raised in 1955 by the Hague Protocol to the Warsaw
Convention. In particular, the Warsaw Convention:

      mandates carriers to issue passenger tickets;
      requires carriers to issue baggage checks for checked luggage;
      creates a limitation period of 2 years within which a claim must
       be brought (Article 29); and
      limits a carrier's liability to at most:
          o 250,000 Francs or 16,600 Special Drawing Rights (SDR)
             for personal injury;
          o 17 SDR per kilogram for checked luggage and cargo, or
             $20USD per kilogram for non-signatories of the amended
             Montreal Protocols.
          o 5,000 Francs or 332 SDR for the hand luggage of a

Karan Shetty                                                      Page 16
      Montreal Convention

The Montreal Convention, formally the Convention for the
Unification of Certain Rules for International Carriage by Air, is a
treaty adopted by a Diplomatic meeting of ICAO member states in
1999. It amended important provisions of the Warsaw Convention's
regime concerning compensation for the victims of air disasters.

The Convention re-establishes urgently needed uniformity and
predictability of rules relating to the international carriage of
passengers, baggage and cargo. It protects passengers by introducing
a two-tier liability system and by facilitating the swift recovery of
proven damages without the need for lengthy litigation.

      National Transportation Safety Board Reauthorization Act
       of 2010

A bill to amend title 49, United States Code, to authorize
appropriations for the National Transportation Safety Board for fiscal
years 2011 and 2012, and for other purposes.

      National Transportation Safety Board

The National Transportation Safety Board (NTSB) is an independent
U.S. Government investigative agency responsible for civil
transportation accident investigation. In this role, the NTSB
investigates and reports on aviation accidents and incidents, certain
types of highway crashes, ship and marine accidents, pipeline
incidents and railroad accidents. When requested, the NTSB will
assist the military with accident investigation

Karan Shetty                                                   Page 17
    Aviation Safety Action Program

       The goal of the Aviation Safety Action Program (ASAP) is to
       enhance aviation safety through the prevention of accidents and
       incidents. Its focus is to encourage voluntary reporting of safety
       issues and events that come to the attention of employees of
       certain certificate holders.

      Lawyer Pilots Bar Association

       Lawyer Pilots Bar Association is an international non-profit
       association of individuals who share a common interest in
       aviation, aviation safety and the law.

Aviation laws in India and world
World’s aviation industry is primarily regulated by rules and laws
formulated by the procedure of international treaty and convention.
Most of these can be found in the Annexes and Docs. All ICAO
member states being sovereign nations, have the prerogative of
making their own laws and rules, which have to be notified by them
in ICAO’s Aeronautical Information Publication and thus inform the
organisation on the differences made.

Aviation Laws Specific to India
Aircraft Act 1934:
This is an act to make better provisions for the control of the
manufacture, possession, use, operation, sale, import and export of
Aircraft Rules 1937:
Indian Government has made as many as 161 rules covering different
aviation aspects including about definitions, appeals, smoking in
aircraft, tariff charges and about the aircraft registered in or belonging
to foreign state.

Karan Shetty                                                       Page 18
Mangalore Air INDIA Express Crash

The crash of a passenger aircraft at Mangalore on 22 May 2010
resulted in the loss of 158 lives. This accident was the third deadliest
aviation disaster in India. the Civil Aviation Ministry advised that the
Airline will provide up to 72 lakh (US$146,020) to family members
of each victim as per the provisions of the Indian Carriage by Air
(Amendment) Act 2009, which follows the Montreal Convention
which imposes on Air India a minimum liability of one lakh Special
Drawing Rights (equivalent to Rs70 lakh) per passenger in the event
of death in an air accident. SDR is a special currency issued by
International Monetary Fund to which India was a signatory.

This incident is a very good example of how international law has
been accepted interpreted and executed in a municipal court of a
sovereign state thus emphasising on the importance of international
law and its co existence among municipal law.


The practise of states regarding the relationship of international law
and municipal law is divergent. Application of international law
depends largely upon the legislature as well as the judiciary of the

They are expected to take cognizance and endeavour to honour the
international obligations of the state. It has to be realised by them that
neither municipal law nor international law is supreme, but they are
concordant to each other. They both have been made to solve
problems of human beings in different areas and hence in my opinion
should be given equal standing in all proceedings of justice.

Karan Shetty                                                       Page 19

    Airport management world class& beyond

Karan Shetty                                     Page 20

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