This article has been written by Ms.Ekta Bhardwaj, a 2nd year Ballb(H) student of National Law University , Delhi.
Abstract-:
This paper presents the most efficient & legitimate ways to implement UNsC resolutions under the national legal system.It explains the importance of Un act that is required for implementation of UNSC resolutions.Because the implementation of UNSC resolutions on a case-by-case basis is time-consuming and lacks legal clarity when domestic measures are inadequate. Additionally, it is important to recognize that the implementation of the United Nations Security Council’s resolutions relies heavily on the strict enforcement of targeted sanctions.Afterwards, we will explore the two main approaches to incorporating UNSC resolutions into international law : Dualism and Monism.The present paper examined the theoretical frameworks that elucidate the function of municipal law in carrying out United Security Council resolutions.This article provides an Indian perspective on how municipal law plays a crucial role in the implementation of UNSC resolutions.In the critique section, I thoroughly discussed the shortcomings and issues that I have identified in the process of implementing and enforcing the UNSC resolution.
Keywords-: UNSCR Implementation,Dualism Monism, Municipal law, UN act
Introduction-:The United Nations Security Council Resolutions (UNSCR), a legal instrument, apply to all countries, even if they are not members of the United Nations. This raises the question: how do non-member states implement these resolutions? The answer lies in the nature and type of the resolutions themselves. UNSC resolutions can be broadly divided into two categories: binding and non-binding. This difference is crucial when it comes to the application of these resolutions to non-member states and dualist countries like India and Canada. The country implements those UNSC resolutions that align with national interests. But how is the implementation of these resolutions ensured? This is where the role of municipal legislation comes into play. Municipal legislation refers to the laws and regulations of a state that are applicable within its territory. The application of UNSC resolutions as a legal instrument varies across nations, with certain countries considering them to be self-executing, whereas others hold the belief that they are not. To understand this better, we can look at the two fundamental approaches to implementing UNSC resolutions: Dualism and monism
Then This article analyzed the theories that explain the role of municipal law in the implementation of United Security Council resolutions. There may be conflicts between the UNSC resolution and a state’s domestic laws. In such cases, the state may choose to prioritize its domestic laws, creating a barrier to implementing the UNSC resolution. In the context of India, the implementation of UNSC resolutions is guided by its domestic laws and policies. India follows a dualist approach, and any resolution that is to be implemented within the country must be incorporated into its domestic legislation. The Indian government has also faced challenges in implementing some UNSC resolutions, such as those related to terrorism, due to conflicts with its domestic laws and policies. The UN Act is useful to implement UNSC resolutions because it provides legal certainty. I hope this article will help you understand the role of municipal legislation in implementing UNSC resolutions.
Background-:
The UN Security Council is largely a political organization/body with certain quasi-judicial powers. The Security Council is mainly in the position of sustaining international peace and security, in accordance with Article 24 of the Security Council. Resolutions of the United Nations Security Council are formal representations of the Council’s beliefs or intentions. As a legal instrument, the UNSCR is divided into two sections: a preamble and an operative component.
1.Preamble-: Preamble sections usually offer background information and establish the stage for the operational portion of the resolution . They also typically present the reasons that support actions, opinions, or directives.
2.Operative-: The paragraphs outline the Security Council’s stance or the approach that UNSC committees or individual members should take.
The UNSCRs are applied differently in each nation.The UNSCR is regarded as self-executing by certain nations.However, some nations believe that UNSCR is not self-executing.Although states must carry out UNSC resolutions, there may be obstacles in their way.At the national level, it is difficult to immediately execute this resolution.One of the Directive Principles of State Policy, which is written in Article 51 of the Indian Constitution, requires the state to promote respect for international law and treaty responsibilities in the interactions between organized persons.
Exploring Dualism and Monism: A Fundamental Approach to Implementing UN Security Council Resolutions-:
In order to apply the UNSCR, we must examine the concepts of dualism and monism in international law.
Dualism perspective –: According to dualists, municipal law and international law are two completely different legal systems that have different origins, regulate different domains and interactions, and have various substantive differences. International law is therefore viewed by its supporters as weaker and inferior to municipal law.A school of thought known as dualists holds that municipal law takes precedence over other legal systems in cases of conflict. This school of thought has found theoretical justification in the notion that international law is a weaker legal system than domestic law. Because it works in a different area, it has no authority over municipal law. The dualists contend that states have the right to govern their internal affairs as they see fit and that international law has a negligible impact over municipal law since it can only apply to states and cannot address individuals.The dualists will acknowledge that many treaty provisions and international law are designed with the welfare of persons in mind and that international law is primarily a voluntary or moral obligation.
Monism perspective -: Monism argues that the recognition required for municipal law’s authority to function over a particular subject or territory comes from international law, which explains why the legal domains are interrelated.Natural law proponents contend that local and international law together constitute a single legal system.For monism to take effect, international law does not need to be translated into municipal law. A national legislation is declared invalid in a real monist nation if it conflicts with international law.They contend that calling both municipal law and international law “law” would be inappropriate if they were completely unrelated and distinct from one another.
Domestication is required under international law rules in a certain manner or another. how the regulations of a specific municipal legal system are taken into account by the international legal system in order to give it international applicability, and how both the international and municipal legal systems contribute to our understanding of how much a given country’s municipal legal system applies international law rules.
The Role of Municipal Law in the Implementation of United Security Council Resolutions: An Analysis of Theories-:
Transformation or Specific Adoption Theory: It is founded on the dualist principle. It should be changed or adopted by the state as a rule of law in municipal legislation.On the other hand, some argue that once established, international law becomes part of a state’s internal law without requiring ratification through constitutional procedures. The theory of delegation allows each state to decide when and how to implement international treaty or convention provisions into its own law.International law standards apply equally to municipal systems.
Indian perspective on how municipal law plays a crucial role in the implementation of UNSC resolutions-:
India has always been characterized as a dualist nation in terms of its adherence to international law. Formally at least, the distribution of the power of assumption of international obligations lies with the Executive, while its domestic implementation requires Parliamentary sanction . Additionally, the Indian judiciary employs a variety of monism-infused approaches for enforcing commitments under non-domesticated international law.
India should engage with international law through its government organs and direct engagement. Monist approaches suggest that international law should be automatically incorporated into the domestic legal order and applied as part of the governing normative framework, including the judiciary.
The Executive can take on and internalize responsibilities without parliamentary monitoring due to Parliament’s limited authority over the domestication of international norms, which reflects the unique power dynamics in Indian practice.
According to Article 253 of the Constitution, Parliament has the authority to enact laws for international responsibilities, even those that are beyond the scope of state legislative competence. Article 73 coterminates the powers of Parliament and the Union Executive, allowing Parliament to enact laws governing foreign responsibilities and domestic enforcement. The Executive can adopt international law without specific approval or supervision.
India has already passed its own legislation regarding the adoption of United Nations resolutions, commonly known as the UN Act.
1.A country needs to enact a UN act to provide legal certainty in the implementation of the UNSC resolutions.
2.The country should transform the UN resolution into national law in order to implement it.
3.Legal umbrella to regulate the implementation of the UNSC resolution
4.The international community’s best approach to putting UNSC resolutions into effect is to use targeted sanctions inside them. Travel restrictions, asset freezes, financial losses, and commodity prohibitions are some examples of targeted penalties.
Criticism -: Numerous domestic courts suffer from a deficiency in professional competence when it comes to correctly implementing international law standards. This is primarily due to the fact that the majority of domestic judges possess minimal or no experience or training in the field of international law.
The municipal judge may encounter practical difficulties when it comes to implementing such norms. These challenges are primarily linked to the judge’s capacity to comprehend and grasp the substance and implications of international public law. Furthermore, the judge must navigate the boundaries within which they can apply international public law, taking into account the regulations of their own legal system that outline their position and responsibilities. Moreover, the judge must also consider the disparities between international public law and municipal law.
To implement its provisions, international law needs an efficient executive authority.
When a resolution infringes upon the rights of individuals and legal entities safeguarded by the law and constitution, the question arises as to which should take precedence: national law or the UN Security Council resolution.
Will the country fully support all resolutions made by international organizations it belongs to or only follow decisions that are in line with its national interests?
Which authorities or institutions are responsible for assessing whether the decisions made by an international organization align with a country’s national interests? Furthermore, which authorities or institutions are assigned the duty of creating a national legal structure to enforce the decisions made by the international organization?
Distinguishing Between Binding and Non-Binding UN Security Council Resolutions-:
The overall language and objectives of the agreement, along with the circumstances surrounding its execution, play a significant role in determining the nature of the resolution. Additionally, the nature of the obligations imposed by the agreement and the availability and feasibility of alternative enforcement mechanisms also contribute to shaping the resolution.
Non Binding SCRS -: They differ from binding resolutions in that they do not impose legal obligations on member states but rather serve as recommendations or expressions of concern.
Non-binding resolutions offer flexibility, allowing member states to adapt their actions based on their unique circumstances and national interests. They are often adopted through consensus-based decision-making, ensuring the resolution reflects the collective will of the international community. Non-binding resolutions can also serve as diplomatic tools, addressing sensitive issues and promoting cooperation and understanding among member states, unlike binding resolutions that carry legal consequences.
Binding SCRS-: The Security Council should pass legislation based on proportionality and necessity principles, broad consultation, human rights compliance and a margin of appreciation. The proportionality principle should guide actions to restore international peace and security, while the necessity principle ensures necessary actions.
Conclusion-: The UN Security Council is a political organization with quasi-judicial powers, primarily responsible for maintaining international peace and security. Resolutions, which are formal representations of the Council’s beliefs and intentions, are applied differently in each nation. The nature of a resolution depends on the agreement’s language, objectives, and execution circumstances. Non-binding resolutions, which do not impose legal obligations, offer flexibility and can be adopted through consensus-based decision-making. They can also serve as diplomatic tools. On the other hand, binding resolutions, based on proportionality and necessity principles, are passed by the Security Council to restore international peace and security.
The UNSCR requires examining dualism and monism in international law, with dualists arguing that international law is weaker and inferior and monism arguing that recognition for municipal law’s authority comes from international law. The implementation method involves the transformation or specific adoption theory or the theory of delegation.
India’s dualist approach to international law, with the executive holding power and Parliament requiring domestic implementation, suggests that it should engage with international law through government organs and direct engagement. The executive can internalize responsibilities without parliamentary monitoring, reflecting unique power dynamics in Indian practice. Article 253 of the Constitution allows Parliament to enact laws for international responsibilities, while Article 73 coterminates powers between Parliament and the Union Executive.
Domestic courts often lack a professional competence in implementing international law standards due to lack of experience or training. Municipal judges face practical difficulties in understanding international public law and navigating its boundaries. International law requires an efficient executive authority to enforce provisions. The priority of national law over UN Security Council resolutions is crucial, as is assessing the alignment of international organization decisions with national interests and creating a national legal structure to enforce international organization decisions.
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