Public International Law I

LAW 510
International Law and
Municipal Law
 Introduction
• The relationship between International law and municipal
law poses two problems:

1. Theoretical problem, i.e. whether they form part of one

universal legal order or are two distinct systems of law;
and

2. Practical problem, i.e. how to resolve a conflict between

international law and municipal law.
Relationship between International Law and Municipal
Law

• At the jurisprudential level, the relationship between

international law and municipal law has been cast in
terms of the monist/dualist debate.

• Two main theories that are, dualist and monist that have
influenced the constitutional law of each country as to
the application of international law by municipal courts
and other domestic bodies.
• At the level of the practical application of international
law before the UK courts, this debate is cast in terms of
the incorporation/transformation debate.

• The actual relationship between international law and

English law can only be properly understood by
examining the jurisprudence of English law on the
matters of the application of treaties, custom and other
sources of international law in the English courts.
 Dualism

• International law and municipal law are two independent

and separate system.

• It based on the view that international law is the law

applicable between sovereign States and that municipal
law applies within a State to regulate the activities of
citizens.
• On this basis, neither legal system has the power to
create or alter the rules of the other.

• Dualist agree that because international law and

municipal law may deal with the same subject matter a
conflict may arise in which case municipal courts would
give precedence to municipal law.
• In respect of treaty, the dualist theory entails that a duly ratified
international treaty produces legal effect only at the international
level, that is, it is only binding on the contracting states.

• In order to be applied at the municipal court it is necessary for a

treaty to be incorporated into a State’s legal system so that it can
take effect at national level.

• The reception of international law by municipal law constitute the

most important feature of the dualist doctrine. However, once a
provision of a treaty is implemented into national law, it is applied by
national courts as any other municipal provision and not as an
international one.
 Monism

• There are many varieties of monism but its main premise

is that international law and municipal law are part of the
same legal order.

• It emphasizes the supremacy of international law even

within the municipal sphere.
• As they may regulate the same subject matter any
conflict between the two would be solved in favor of
international law.

• The justification of supremacy of international law is,

according to Lauterpacht, that international law is a more
trustworthy repository of civilized values that the
municipal law of a nation State and thus between
equipped to protect international human rights.
• Under the monist theory, the unity between international
law and municipal law means that international treaties
automatically become law within a contracting state.

• They are directly applicable.

• There are no need for incorporation of an international

treaty as it becomes an integral part of the national law
of a contracting State once the procedure for its
ratification is completed. An international provision is
applied by municipal courts as such not as a provision of
domestic law.
 Third theory: Formulated by Sir Gerald
Fitzmaurice

• He sought to overcome the conflict between the monist and dualist

schools by challenging their common premise that there exists a
common field in which the two legal orders both simultaneously
have their spheres of activity.

• He argued that as the systems of international law and national law

do not operate in common fields, they can never come into conflict.

• There may, however, occur a conflict of obligations, in which case

the domestic law remains unaffected but a state will, on the
international scene, incur liability for a breach of an international
obligation.
• Fitzmaurice the General Principles of International Law
Considered from the standpoint of the Rule of Law

“This controversy (between monism and dualism) turn on

whether international and internal law are two separate
legal orders, existing independently of one another-and,
if so, on what basis it can be said that either is superior
to or supreme over the other; or whether they are both
part of the same order, one or other of them being
supreme over the other within that order…”
• Anzilotti:

“It follows from the same principles that there cannot be conflict
between rules belonging to different juridical orders, and,
consequently, in particular between international and internal law.
To speak of conflict between international law and internal law is as
inaccurate as to speak of conflict between the laws from different
states: in reality the existence of a conflict between norms belonging
to different juridical orders cannot be affirmed except from a
standpoint outside both one and the other.”
• Kelsen:

“The mutual independence of international and national law is often

substantiated by the alleged fact that the two systems regulate
different subject matters. National law, as it said, regulates the
behavior of individuals, international law the behavior of states. We
have already shown that the behavior of states is reducible to the
behavior of individuals representing the state. Thus the alleged
difference in subject mater between international and national
cannot be a difference between the kinds of subjects whose
behavior they regulate…”
 How domestic courts treat
international law?
• The attitude of the executive and judicial organs, in combination with the
constitutional and legislative arrangements will determine the power and
influence of international law over domestic issues.

• Mabo v Queensland [No. 2] affirmed the importance and influence of

international law in judicial decision-making in Australia.

• Justice Brenna acknowledge that Australia's common law does not

automatically assume the position taken in international law. However, his
Honour emphasised the importance of international law as a ‘legitimate and
important influence’ in developing and furthering the common law, bringing
it into conformity with contemporary values and expectations.
 The influence of treaties on
domestic law
• Treaty are generally made by the executive branch of government,
often negotiated and agreed upon by diplomats functioning at an
international level.

• In most Commonwealth countries, the conclusion and ratification of

treaties lies within the executive’s prerogative.

• Treaties generally need to be transformed by legislation to become

part of domestic law.
 The Australian approach
• Treaty law does not become part of Australian domestic law until it is
transformed through a legislative act.

• This was affirmed in Minogue v William which examined the legal position of
human rights instruments scheduled to the HREOC Act.

• The significance of this approach is twofold.

• Firstly, ratification of a treaty does not of itself change or affect domestic

law.

• In the Dietrich, the High Court confirmed that despite Australia’s ratification
of the ICCPR, it had no binding effect at the domestic level. This was
because the ICCPR hat nor been implemented through legislation and
therefore remained outside Australian law.
• Second, treaties that are ratified but not implemented do not create grounds
to bring a claim to the domestic court. They do not provide a cause of
action.

• As stated in Minogue v Williams, ‘the ratification by Australia of the

ICCPR...did not render it part of Australian municipal law...nor does it create
justiciable rights for individuals.

• Despite remaining outside domestic law, ratified treaties play an important

role in influencing state decision-makers and bodies, including parliament
and the judiciary.

• They provide a fundamental benchmark for states to refer to, reflecting

international expectations and standards. This is particularly relevant in
the area of human rights, where the instruments indicate the level of
protection to which states are obliged and expected to observe,
• Indeed, treaties that are yet to be incorporated into domestic law may still
create legitimate expectations for individuals.

• The case of Teoh is a powerful example of the influence that a ratified but
unincorporated treaty may have on the judiciary.

• This case questioned the function and significance of treaty ratification, the
influence of political will in the implementation of treaties, and the
importance accorded to international law in the common law.

• The High Court found a ‘legitimate expectation’ that administrative officials

inform themselves about treaty obligations accepted by Australia:
• Whilst recognising the existence of a legitimate expectation, the Court held
that executive decision-makers were not required to comply with these
expectations.

• If this were the case, provisions of unincorporated treaties, in effect, be

incorporated into domestic law.

• The High Court’s ruling in Teoh had significant ramifications within Australia.
It extended the impact of ratification to an act creating obligations upon the
state and its agencies to inform themselves of Australia’s treaty obligations
and to act with awareness of these international obligations.

• The state officials must now take into account treaties which Australia has
ratified in their decision-making processes, even where parliament has not
yet enacted legislation to apply the treaty provision in domestic law.
 The UK Approach

• The transformation approach is favored.

• For treaty to become part of domestic law, there must be an express

enabling Act of Parliament.

• Thus, a treaty cannot affect private law rights, liabilities and obligations
unless and until it has specifically been made part of the UK’s domestic law.

• In Maclaine Watson, Department of Trade and Industry, the HoL recognized

that UK courts may be required to rule upon the scope or meaning of treaty
provisions in instances where domestic legislation does not directly
incorporate a treaty, but requires reference to be made to the terms of the
treaty so as to interpret the legislation.
 The US approach
• A distinction is drawn between self-executing and non self-executing
treaties.

• The US courts in Fuji case view a treaty as self-executing where it ‘stand

alone’, that is, the treaty operates without the assistance of any additional
implementing legislative provision.

• To examine whether or not the treaty is self-executing, the US court will

examine the intention of the signatory parties as evinced by the language of
the treaty and, where this is uncertain, relevant surrounding circumstances.

• In Fuji, the Supreme Court of California held that articles 55-56 of the UN
Charter (which concern human rights) is not self executing. Thus, they
cannot be applied without the appropriate implementing legislation.
Influence of customary international
law on domestic law
• Most, if not all, domestic legal systems acknowledge that
customary international law is an integral part of
domestic law
 The Australian approach

• Federal Court decision in Nulyarimma affirmed the endorsement of the

transformation approach by Australian courts, such that CIL does not form
part of Australia law without legislative incorporation.

• Whether CIL in particular international criminal law (genocide) could

become part of Australian law without parliamentary action.

• Two-step argument was made:

• First, the prohibition against genocide is a customary norm of international

law.
• The parties and the court agreed that genocide is not only a customary
norm, but also a universal crime under international law.

• The court found that the prohibition against genocide is peremptory (jus
cogens) norm of international law, giving rise to a non-derogable obligation
by each state to the international community.

• This norm existed before and independently of the Genocide Convention.

• Second, Australian domestic law incorporates customary norms of

international law without the need for legislation, and therefore the crime of
genocide is part of Australian domestic law.
• This was rejected by the court who were not willing to find that a person
could be put on trial for genocide without the crime of genocide existing in
Australian law.

• The Court held that the international crime of genocide was not part of
Australian law for the purpose of the claim.

• The reasoning in Nulyarimma was arguably underpinned by important policy

factors operating only in relation to international criminal law, suggesting
that Australian courts might show a greater willingness to accept the
incorporation of customary law in other contexts.
 The UK approach
• Lord Denning in Trendtex Trading Corporation v Central
Bank of Nigeria confirmed the application of the doctrine
of incorporation. He commented on the relationship
between customary international law and English law in
the following terms:

‘…Under the doctrine of incorporation, when the rules of

international law change, our English law changes with
them. But, under the doctrine of transformation, the
English law does not change. It s bound by precedent.
As between these two schools of thought, I now believe
that the doctrine of incorporation is correct, Otherwise I
do not see that our courts could ever recognize or
change the rules of international law.’
• The dictum of Lord Denning in Trendtex has been
followed in a number of cases so supporting the
proposition that the doctrine of incorporation has been
adopted as the prevailing principle in English law.

• Various judgment in Pinochet case provide support for

the doctrine of incorporation, for example, Lord Lloyd
stated that the principles of customary international law
‘form part of the common law of England, whilst Lord
Millet emphasized that ‘customary international law is
part of the common law.
• Certainly, the court have been reluctant to apply principles of the
common law which conflict with customary international law.

• In Westland Helicopters v Arab Organization for Industrialization,

Colman J confirmed the doctrine of incorporation and stated:

“Inasmuch as the common law rule is at large before this court,

there is, in my judgment, every reason in principle why the approach
of the common law should be consistent with that of public
international law unless there is some controlling common law
principle to the contrary; for it is part of English public policy that our
courts should give effect to clearly established rules of international
law.”
 The US approach
• Incorporation over transformation

• The US Constitution views customary law as part of federal common law.

• If there is no conflicting legislation or former judicial authority, customary

international law will be automatically incorporated into US law.
 Municipal Law before the International
Courts and Tribunals
• The rule is that in the event of conflict between international law and
national law, international law prevails.

• The ILC Draft Declaration on Rights and Duties of States to the

UNGA in 1949:

Article 13:

Every state has a duty to carry out in good faith its obligation arising
from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.
• In respect of international treaty, Article 27 states:

A party may not invoke the provision of its national law as

justification for its failure to perform a treaty. Thus rule is without
prejudice to Article 46.

• The exception is embodied in Article 46 applies only in exceptional

circumstances, that is, when a State’s consent to a treaty is
invalidated by a ‘manifest’ violation of its internal law and concerns
‘a rule of its national law of fundamental importance.’
• A state cannot rely upon its municipal law to avoid its international law
obligations.
Alabama Claims Arbitration

Shortly after the beginning of the American Civil War, the UK Government
made a declaration recognizing the Confederations as belligerents and
declaring British neutrality. Despite this, during the Civil War, a number of
ships were built in England for private buyers. The vessels were unarmed
when they left England but it was generally known that they were to be fitted
out as war ships by the Confederates to attack Union shipping. For
example. Enrica, built in Birkenhead, was designed a s a war ship. Once
she left the UK, she sailed to the Azores where she was fitted with guns,
and loaded with ammunition. Her name was changed to Alabama. Alabama
destroyed 64 US vessels before she herself was sunk. The US sought to
make GB liable for these losses on the basis that GB had breached her
obligations as a neutral country during the War.
The GB argued that under English law as it then stood, it had not
been possible to prevent the sailing of vessels constructed under
private contracts.

Held:

The arbitrators rejected the British argument and had no hesitation

in upholding the supremacy of international law:

The tribunal rejected the British argument that because its

constitutional law was not such as to provide it with the power to
interfere with the private construction and sailing of the ships
concerned, Great Britain had not violated its obligation as a neutral
in the United States Civil War by allowing the construction and
sailing to occur.
 LaGrand Case and the Case Concerning Avena and
Other Mexican Nationals

• In these cases the ICJ examined the US constitutional

rule of ‘procedural default’ under which a procedural
failing which has not been argued at a state level cannot
be argued at federal level.

• In LaGrand the ICJ state that although the rule itself did
not violate Article 36 of the Vienna Convention on
Consular Relations, its application to the LaGrand Case
was in breach of that provision.
• The procedural default rule prevented a German national
from raising a claim on appeal (which had not been
raised in earlier proceedings) based on failure of the
competent USA authorities to comply with their
obligations to provide the requisite consular information
‘without delay’ as set out in Article 36 (1) thus preventing
the German national from seeking and obtaining
consular protection from the relevant German
authorities.

• Subsequent to the judgment of ICJ in LaGrand the US

did not revise the above rule.
• In Avena the ICJ agreed with the submission of Mexico that the US,
by failing to revise the procedural default rule in the light of its
implications for defendants seeking to rely on the Vienna
Convention in appeal proceedings, had failed to provide ‘meaningful
and effective review and reconsideration of convictions and
sentences impaired by a violation of Article 36(1) of the Convention.

• The conflict between a State’s municipal law and its international

obligations does not necessarily affect the validity of that law on
municipal plane.

• Thus, a municipal act contrary to international law may be internally

recognised as valid but other States will be under no duty to
recognise its external effects.
 Exchange of Greek and Turkish Populations Case

Referring to Article 18 of the Treaty of Lausanne 1923, by which the

parties undertook “to introduce in their respective laws such
modifications as may be necessary with a view to ensuring the
execution of the present Convention” the Court stated:

This clause…merely lays stress on a principle which is self-evident,

according to which a state which has contracted valid international
obligations is bound to make in its legislation such modifications as
may be necessary to ensure the fulfillment on the obligation
undertaken.
 THANK YOU

contacts: shahrizalzin@salam.uitm.edu.my