International Law and Domestic Law:
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Housekeeping: Cross check textbooks with – consider writing these notes in your book for
this as the slides won’t be uploaded for the lectures.
Read the news and think about its development in relation to international law – economist
subscription. Look online. Bookmark legal international law blogs: EJIL Talk and Opinio Juris,
leading blogs.
ICC not opening case over Palestinian War Crimes – prosecution ruled these were not grave
enough to look at proceedings.
Where are we now?
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Three pillar structure of teaching – we’ve covered identity, sources, treaties and personality,
the basics.
Now we’re moving on to international law, its reach, limits and what happens if it is
breached. Will be a revision lecture at Christmas.
Covering relationship between international law and domestic law.
Issue of prisoner’s voting
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Grayling’s statement is inherently contradicting and exemplifies the tension underlying the
whole of today’s discussion.
Hirst v UK
Held the blanket ban over prisoner’s voting breached Article 3 Protocol 1 on the ECHR,
followed by domestic case law.
Smith v Scott – Scottish registration appeal court stated this was true, and contradicted HRA
1998, because of this violation it entered a declaration of incompatibility.
Grayling: Parliament is sovereign. Over this issue the Parliament is operating on domestic
constitutional law, clashing here with the ECHR.
Look up rest of his speech; decide whether you agree with his reasoning. Important to
remember underlying tensions.
Theories of the relationship between the international and domestic law:
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Two practical perspectives:
The international viewpoint and domestic viewpoint.
Monist and Dualist
Monism:
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Theory telling us domestic and international law are component parts of one single order,
component parts of one single, legal order.
Law is a pyramid with international law at the top of this pyramid, Hans Kelsen, UK should
abandon blanket ban according to this theory.
Dualist:
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Operate in two separate spheres, one for international law and 193 for all the domestic laws
of members of the UN
Bridges between them, but they operate on different, non-hierarchical planes. Bridges need
to be built by domestic law and are done so because domestic law chooses to do so.
Criticism is that different states have different solutions, may be monist or dualist – there cannot
be a singular distinction right every time.
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Conflates question of applicability and question of precedence. Which law applies vs
which law prevails?
National legal systems do not reflect one approach of the other.
Also suggests there are only two possible approaches but there are a number of
approaches, is it possible to create a third plane?
Is there a third way?
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Gerald Fitzmaurice believes there is – in his opinion the monist, dualist controversy is unreal.
Essential difference between M&D is whether there is one or two legal orders.
Fitz states there might be two legal orders, but they do not occupy a field where both would
apply at the same time.
In domestic law they’re a conflict of law rules telling you which legal order to apply, in
international law only pubic international law applies.
Operate on different planes with the lack of a common field. But over prison votes there is a
conflict of obligations: sovereignty vs ECHR.
This is not a problem with the legal orders as such.
Different subject matter means a lack of clash.
Analysis:
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May have a theoretical appeal but does not dismiss the debate e.g. UK is frequently
cited as a primary example of a dualist system, the Netherlands is monist.
Every legal order has rules on how IL applies domestically, practically we hear states
cited as either monist or dualist – hinges on the domestic rules relating to the
application of international.
More specific the requirement of domestic laws are, the more they will be described as
either monist or dualist.
Perspectives of International Law:
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Domestic law may be a source of international law – Article 38 ICJ Statute
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Provision seen as enlisting sources of international law.
What role could domestic law play in this?
Limited in treaties. Naturally occurs over customary international law, ‘evidence of a general
practice accepted as law’. Can form State practice relevant to formation here.
Conduct of border official for example, if repeated across the world it is general practice. If
all world states adopt a statute prohibiting torture, wouldn’t this be evidence of customary
international law?
‘General principles of law recognizing by civilised nations’ – principles like sovereignty are
more readily seen in customary.
Majority view is this refers to principles of domestic law, shows court would not be able to
rule on a particular question. Role domestic law plays under ICJ statute and more generally.
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Subsidiary source of ‘judicial decisions’ – doesn’t stipulate these need to be done
internationally, could equally be domestic. Jurisprudence of the ICJ: Arrest Warrant Case of
the ICJ – ICJ referred to international law cases to immunity, looked at Pinochet from the UK,
French cases etc. Example of when International Tribunal looks to domestic jurisprudence.
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See slide
Primacy of International Law:
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A State cannot rely on the absence of domestic legislation to avoid responsibility in
international law
International obligations prevail over national law in the event of a conflict
International law is supreme but how do we know that?
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Legal basis: First recognition of this in Alabama Claims Aribitation, Moore, Digest 1 (1898)
Concerned a war ship built in the UK against the will of the US, during the time of the Civil
War.
Under international war, in times of a civil law there is a duty on all the other states to
maintain strict neutrality and not assist either side, the building of the war ship clearly
violated this. UK government argued that the ship was being built by a private party – this
was no justification however. Although domestic law didn’t allow them to stop them
building this, this was a failure of domestic law, international law prevailed over. Paid
compensation to US for its violation – principle became part of customary international law.
Vienna Convention of the Law of Treaties:
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Articles 27 and 32 enshrine prevalence of international law
Incorporation of notions from domestic law into international law
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International law may us notions or concepts only defined in domestic law
It must apply law accordingly
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Examples:
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Rules on the treatment of foreign nationals
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Rules on the protection of investment by foreign corporations
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Nationality for foreign nationals relies on country’s provisions in which
they are residing at the time.
Domestic law as a fact before international tribunals
 Tend towards more assertive application of this.
PCIJ Upper Silesia 1926
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Concerned land owned by a factory, question over whether Poland was violating
international law over company owned by Germans and its treatment of nationals.
‘municipal laws are merely facts which express the will and constitute the activities of
states…’
Judicial position is not to analyse the domestic law.
Inter-American Court of Human Rights Advisory Opinion
American Convention on Human Rights – what is the effect of a state adopting a domestic
provision violating an international human rights treaty?
Would give rise to international responsibility from the states itself, may go so far as to be
an international crime.
Does this mean the law is invalid?
No, ‘it is not appropriate for the Court to rules on its domestic legal effect’ – restatement of
traditional position, reasserts sovereignty as international tribunal cannot ivalidate domestic
law.
IC Dijibouti v France 2008 – read
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Question whether an invitation to the President of D to appear before the French court
would violate a domestic statute.
ICJ willing to accept invitation to testify was laid down by a French statute.
ICJ willing to go further here – states ‘this was in accordance with French law’ willing to
adopt their domestic approach on this point.
Duty to legislate?
Some support for a customary principle:
PCIJ Exchange of Greek and Turkish obligations (1925)
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Contracted them selves into a duty to legislate.
Lockerbie Case 1992
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Famous case, over question over extradition of two of its nationals over their
shooting down of a commercial flight
Libya argued it had followed all its international obligations by reviewing
proceedings internationally.
‘A state may well find that if it is not to breach its international legal order it may
have not only…’
Charter of UN prevails over nay conflicting obligations, ICJ found there was an
obligation to surrender nationals.
Libya argued this was against constitutional order – judge’s opinion held a state may
well find if it is not to breach its legal order it may have to amend constitution if in
conflict of International Law.
Answers question over general duty to legislate.
Not a general duty – may have different ways to get out of conflicting obligations.
Solution might be to amend constitution.
Perspective of International Law:
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Does IL give rise to duties and obligations? Depends on domestic law – every system is
essentially dualist in this sense.
Two concepts:
1) Incorporation – IL becomes part of domestic law without the need for any specific
legislation, automatic.
2) Transformation – idea IL will only become part of domestic law when it is specifically
transformed into domestic law by national legislation.
Constitutional approaches:
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Domestic legal systems do not adopt a uniform approach
Starting point for national bodies is their own constitution and the assumption that
the legal effects of international law within domestic law are governed by domestic
law.
Treaties:
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Self-executing treaties, effective directly in domestic law immediately upon
ratification.
Dualist approach accords no status to treaties unless legislation is incorporated
into domestic law specifically.
Treaties across the La Manche:
In Dutch constitution, treaties are clearly superior once ratified – tied in with strong degree of
Parliamentary control. In France judicial control of newly adopted treaties is present. Establish
superiority over loss prior and frequent.
Move closer to the middle of the spectrum as if there’s a conflict it is to be solved with reference to
domestic constitutional principles
Germany: Gorguili case – treaties have an equal statutes to federal statutes but will not prevail over
the basic law, but basic law must be construed to harmonize with international law.
US - in spite of constitution is primarily dualist.
3 factors diminishing domestic effect:
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Those treaties ratified by the President, with two thirds of Senate voting are treaties under
the constitution, other congressional treaties and international ones without this formality
are not treaties under the constitution.
Avena and Medellin v Texas – read case over execution of Mexican nationals, held by
Supreme Court whilst there was a presidential declaration the execution should be halted to
review IL, this had no effect on Texas.
Treaties: UK
Transformation arises out of the doctrine of Parliamentary sovereignty.
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Two types of treaties: Incorporated treaties, unincorporated treaties.
Treaty of Lisbon, and EU founding treaties as amended by Lisbon – European Convention on
Human Rights 1950
Refugee Convention 1951
EU founding treaties – Treaty on European Union and TFEU
Treaties and Statutory Interpretations – way in which treaties are incorporated may differ.
Should unincorporated treaties have any relevance at all?
 Shouldn’t be (on the contrary) – orthodox position but dents in it.
 Role in interpretation of ambiguous legislation:
 Salomon v Commissioners of Customs and Excise
 Role unincorporated treaties have is over the presumption of international
treaty obligations – did not want to legislate in violation of principles.
 US case – UN headquarters case 1988 – legislate adopted by US congress
over plaestinan liberation organization, having no presence on territory, if
one arose they were to remove it.
 However, had a presence at the UN headquarter, did the UN need to be
shut down over this?
 Held treaty over UN superseded treaty on terrorism, Congress must be
presumed not have legislated on the treaty here – unconvincing.
Unincorporated treaties:
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Ex parte Brine 1997 – statute had to be interpreted in light of HRA which hadn’t yet been
entered into force. This argument was rejected by HOL, said it would be a backdoor route to
ratifying the convention.
Ex parte Lauder and R (Corner House Research) look at these over treaties in administrative
decisions:
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Look at what the admin decision maker wanted to achieve, and to what extent was this
recognised by the court? Will assist in distinguishing cases.
Legitimate expectations:
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Minister of State – state ratifying a convention may give rise to legitimate expectations
domestically, but what type of rights may be claimed on these L.Es?
Higgs – effect is purely procedural.. ‘in this respect there is nothing special about a
treaty. Such legitimate expectations may arise from any course of conduct which the
executive has made it known that it will follow’
Even if you don’t incorporate it it gives rise to an LE you will not legislate contrary to the
treaty. Sees tension between international law and parliamentary sovereignty.
Customary international law:
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All domestic international systems seem to accept customary international law as an
integral part of national law.
Legal effect of customary norms differs widely
Italian constitution Article 10
Shall conform to the generally recognized rules of international law – general rules
shall be an integral part of domestic law. In UK this is done by the doctrine of
incorporation.
Generally applies to treaties or rules of custom.
Doctrine of incorporation:
 Customary international law is automatically regarded as a part of
common law, without the need for a national court or a national
implementing measure.
 Must be recognised by the courts, article by Roger O’Keefe –
doctrine of this is actually doctrine of transformation.
 Customary international law needs to evolve over this.
 Why is it easier to incorporate customary rules over treaty rules?
 No tension or division between organs of government, treaties are
negotiated by the government and then incorporated by Parliament.
 Notion of persistent objector – to extent is a part of international
law, party has right to object
 Finally, when the endorsement was decided there were relatively
few norms of international law.
 Some limitations on doctrine of transformations and some over
doctrine over limitations.
Limitations over the doctrine of incorporation
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Danish captain of trawler, argument of Danish captain was extent of territorial jurisdiction
was to only limit British nationals (meaning they couldn’t fish over 3 mile radius). Court held
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this defence failed – presumptions statute applies to UK nationals, but was rebutted by
statute here, the statute was intended to take precedence over customary international law
and treaty law.
Must be recognised and acted upon.
Not able to look at practice here. Highlights importance of actual common consent.
R v Jones: Appellants accused here of criminal damage at air force bases because they
considered the Iraq war an international crime they argued they were acting over crime
prevention.
Lord Bingham, customary international law is applicable but only over where law stipulates
this.
Lord Hoffman, new domestic offences should be debated in parliament, and enshrined in
law – may be a principle of customary international law here as the rights of the accussed
are so paramount. Not sufficient to create crime of aggression domestically.
Might operate generally to limit doctrine of corporation.
Summary:
1. The distinction between monism and dualism – unsatisfactory but is principle analytical
framework
2. Perspective of international law – has primancy
3. Perspecitve of domestic law – IL may need to be transformed to take effect, but
otherwise may be incorporated
4. Applied to UK, doctrine of incorporation responds to way treaties are made into law,
transformation applies to other areas.
5. To what extent does this help us over the prisoners vote? Think about this – different
answers from IL and domestically. Actors may be acting legally, with a clash of legal
obligations.