I have been pursuing Intellectual Property Laws Course for the past 1 year but today's class was wonderful which every Lawyer should know about.It was a basic introduction of what law is. As we are going to explore the area International Intellectual Property Rights i.e in an international level it is necessary to know basics of what law is ,its purpose etc.So far in previous classes we dealt with municipal law i.e laws within the country.For eg. Indian Patent Act,1970 Indian copyright act,1957 etc.We will now go through definition of law and deal later with the international aspect of IPR.
So,what is law?
Law is set of rules or set of principles which is a common answer given by the students.It is advisable that whenever you go through any definition of law or definition in any area,the first thing is to find its source because definitions should always be authentic.Today we discussed two definitions which was given by Salmond and Austin who belong to Positive school of thoughts.Law according to Salmond is "set of rules or body of principles recognised and enforced by the state for the administration of justice".Thus a law must be recognised and enforced by the state for the purpose of administration of justice as defined by Salmond.Likewise Austin claimed that Law is a command of sovereign ,he never outweighed Law with that of sovereign and held that sovereign is supreme.The definition part is over and next is to throw some light on its sources i.e where does the law come from?
The sources are Statutes,Custom and Precedent.Moving on to International perspective, international law is for inter-state relations unlike municipal law as said earlier.Municipal law is a law that is legislated within a country and only for that particular country.But when it comes to international law, it is followed by the states duly after consenting to it.International law has been defined as:
(i) those rules of international conduct which are met,
(ii) general acceptance among the community of nation it reflect and
(iii) record those accomodation which over centuries state have found it in their interest to make .Above whole is the definition,for better understanding I have split it.
(ii) general acceptance among the community of nation it reflect and
(iii) record those accomodation which over centuries state have found it in their interest to make .Above whole is the definition,for better understanding I have split it.
The sources of international law as provided under Article.38 of International Court of justice are:
(i) International conventions- whether general or particular establishing rules expressly recognised by the contracting states.[General means to the entire world and particular means for 2 or more states]
(ii) International custom - evidence of general practice accepted as law.
(iii) General principles of law recognised by civilized nation- here law is not of international perspective but the law consented by the state and not natural law.
Above are the primary sources and the secondary sources are judicial decisions and teaching of most highly qualified writers of the various nations.
[Note: Doctrine of stare decisis and Precedent is not followed in ICJ,also they are not bound by their previous decisions . But decisions are referred to distinguish with present case]
(i) International conventions- whether general or particular establishing rules expressly recognised by the contracting states.[General means to the entire world and particular means for 2 or more states]
(ii) International custom - evidence of general practice accepted as law.
(iii) General principles of law recognised by civilized nation- here law is not of international perspective but the law consented by the state and not natural law.
Above are the primary sources and the secondary sources are judicial decisions and teaching of most highly qualified writers of the various nations.
[Note: Doctrine of stare decisis and Precedent is not followed in ICJ,also they are not bound by their previous decisions . But decisions are referred to distinguish with present case]
Thus, international law is non self executory in the state.It should be ratified and law should be legislated in the state that is intune with the international law.So far we saw what is law and international law,in the next post we will see what is International Intellectual Property Law.
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