Domestic Implementation of International Law

Abstract

Austin called international law “positive international morality.” According to Austin, law is the command of the sovereign, and the indeterminacy of sovereign at the international level and the lack of coercive force had made him classify international law as mere positive morality. Indeed, the sovereignty of the nation-State is one of the foundational principles of international law. International norms were binding on the States only to the extent expressly consented to by them. Enforcement was based on, what may be called, “naming and shaming.” The loss of good faith at the international arena functioned as the only mechanism to ensure compliance with international norms. Over the years now the concept and vigour of international law has seen gradual and momentous change. The contours of sovereignty have evolved so much that we no longer speak with a prescriptive notion of sovereignty, but are rather trying to devise effective mechanisms, both at national and international levels, for furthering the benefits of people individually as well as collectively. The corollary to the traditional conception of sovereignty was the respect for and non-interference with the domestic legal system. But with the transition in the idea of sovereignty nation-States now have to ensure harmony of domestic law with international law. Compliance with international law is no longer an act of morality, but necessary and, in fact, enforceable. This transition primarily occurred due to the interdependence of the States in all walks of life – a move from self-dependence to globalisation. States no longer are mere contributors of law, but are both contributors and recipients of law. India is no exception to this.