LAW 510
International Law and
Municipal Law
Introduction
• The relationship between International law and municipal
law poses two problems:
• 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.
“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:
• This was affirmed in Minogue v William which examined the legal position of
human rights instruments scheduled to the HREOC Act.
• 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.
• 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’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
• 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 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
• 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.
• The Court held that the international crime of genocide was not part of
Australian law for the purpose of the claim.
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:
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:
• 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.
contacts: shahrizalzin@salam.uitm.edu.my