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International Law And English Law Notes

Law Notes > Public International Law Notes

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A.

MONISM VS. DUALISM

Monism and Dualism are ideal types: No national system confirms to either extreme Policy considerations
? Effectiveness -> monism superior
? Uniform application of international law -> monism superior
? Accountability of the Executive
? Democratic legitimation
? Disadvantage for 'monist' states Avoidance techniques
? Common in both 'monist' and 'dualist' states
? Deny jurisdiction over foreign states
? Lack of direct effect -> explicitly says so Jurisdiction of the Courts of Danzig, (1928) PCIJ Series B No. 15
? Conflict rules: later in time prevails; status of IL within domestic law
? Self-executing vs. non-self-executing
? Non-justiciability (see Sec E.)
? Acts of State

1. DUALISM Dualists like Anzilotti argue that international law and national legal systems are distinct. International law is perceived as a law between states whereas national law applies within a state, regulating the relations of its citizens with each other and with that state. Neither legal order has the power to create or alter rules of the other. When international law applies within any national legal system, this is because of a rule of that system giving effect to international law. In case of a conflict between international law and national law, the dualist would assume that a national court would apply national law, or at least that it is for the national system to decide which rule is to prevail.
- Eg UK especially for treaties -> since need to be translated into domestic law PREDICATED ON THE SEPARATION OF POWERS - AND NOT THAT CONSENT ON INTERNATIONAL PLANE DOESN'T MEAN CONSENT ON DOMESTIC PLANETreaties

2. MONISM Monism postulates that national and international law form one legal order. On that basis international law can be applied directly within the national legal order.Ie no act of translation is required

Lauterpacht emphasized that individuals are the ultimate subjects of international law. The state is disliked as an abstraction and distrusted as a vehicle for maintaining human rights. International law is seen as the best available moderator of human affairs, and also as a condition of the legal existence of states and therefore of the national legal systems.

B.

DOMESTIC LAW IN INTERNATIONAL LAW

A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for a breach of its obligations under international law, as any other situation would permit international law to be evaded by the simple method of domestic legislation. This principle is reflected in Article 3 ARSIWA 'the characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law'. Article 32 ARSIWA The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part. Article 27 VCLT A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Alabama Claims Arbitration, XXIX UNRIAA 1235-134 (1871) -> USA told UK said duty as neutral state not to give warships to enemies during civil war - UK said no property authority to prevent ship from sailingHeld long established that UK not excused because of domestic law limitations

Orthodox View: Viewed from International Law, Domestic Law Mere Fact from the stand point of IL - ie domestic law is state practice and not law
- Certain German Interests in Polish Upper Silesia, PCIJ Rep Ser A No 7, 19
- Cf Payment of Various Serbian Loans Issued in France, PCIJ Rep Ser A No
20, 46-47 -> request to apply french and serbian law, then ICJ applies domestic law as law

An associated question is whether the mere enactment of legislation can give rise to international responsibility, or whether an obligation is only breached when the state implements that legislation. There is a general duty to bring

national law into conformity with obligations under international law In Exchange of Greek and Turkish Populations, it was held that a state is bound to modify its legislation to ensure the fulfilment of its international obligations. Normally a failure to bring about such conformity is not in itself a breach of international law; that arises only when the state concerned fails to observe its obligations on a specific occasion. But in some circumstances legislation could of itself constitute a breach of an international obligation, for example where a state is required to prohibit certain conduct or to enact a uniform law.

1. NATIONAL LAWS AS 'FACTS' BEFORE INTERNATIONAL TRIBUNALS National law are merely facts which express the will and constitute the activities of States (Certain German Interests). Dualists use this principle to buttress their arguments that municipal law does not belong to the same legal order as international law. The concept of national law as 'merely facts' has distinct aspects:

1. National law may itself constitute, or be evidence of, conduct in violation of a rule of treaty or customary law

2. Whereas the principle of iura novit curia ("the court knows the law" - that the parties to a legal dispute do not need to plead or prove the law that applies to their case) applies to international law, it does not apply to matters of national law. International tribunals will generally require proof of national law (Brazilian Loans)

3. When called upon to apply national law an international tribunal should seek to apply that law as it would be applied in the state concerned. It is for each state in the first instance, to interpret its own laws. International tribunals are not courts of appeal and they do not have the authority to substitute their own interpretation of national law (e.g. determining whether the rules are valid/constitutional) for those of the national authorities (Diallo (Guinea v DRC)).

4. National law may be part of the 'applicable law' either governing the basis of a claim or more commonly governing a particular issue. Serbian Loans concerned a dispute between the French bondholders of certain Serbian loans and the Serbian government, the former demanding loan service on a gold basis, the latter holding that payment in French paper currency was permissible. The French government took up the case of the French bondholders and the dispute was submitted to the PCIJ. The Court held that the substance of the debt and the validity of the clause defining the obligations of the debtor state were governed by Serbian law, but with respect to the method of payment, the law applicable was that of the place of payment, in this case French law.

2. THE ROLE OF DOMESTIC COURTS IN INTERNATIONAL LAW Domestic court decisions are unique within the international law doctrine of sources because of their ability to wear two hats:

1. National court decisions on matters of international law are evidence of the practice of the forum State, which may be relevant to the interpretation of treaties and the existence of custom under articles 38(1)(a) and (b) of the ICJ Statute. Court decisions by treaty parties amount to subsequent practice that provides evidence of how those States understand their treaty obligations, which shall be taken into account in treaty interpretation when it evidences general agreement about interpretation. National court decisions must also be weighed against State practice generated by other branches of government. Where a court decision coincides with the views of the legislature and executive, it will represent strong evidence of State practice. Where inconsistencies emerge, the conflicting practice must be weighed, considering factors such as which branch of government has authority over the matter.

2. National court decisions may provide a subsidiary means for the determination of international law under article 38(1)(d) of the ICJ National courts thus have the potential to fulfil dual roles, as either national actors operating within the national order or international actors enforcing international law on behalf of the world community. An example of national courts driving the development of international law can be found in the area of State immunity. In the 1800s, several domestic courts, including US and UK courts, developed a general rule of absolute immunity out of disparate immunities accorded to ambassadors and heads of State. At the same time, national courts in other jurisdictions, notably Italy and Belgium, were formulating a restrictive theory of immunity which sought to distinguish between State acts of a sovereign/public nature and of a private nature, according immunity to the former but not the latter. Over time, the influence of the restrictive theory grew and it came to be adopted in other jurisdictions, including in the United States and United Kingdom, ultimately paving the way for the 2004 UN Convention on Jurisdictional Immunities of States.

C.

CUSTOMARY INTERNATIONAL LAW IN ENGLISH LAW

1. THE NEED FOR AN UNAMBIGUOUS RULE International law can only form part of English law if there is an established rule evidenced by international treaties and conventions, authoritative text-books, practice and judicial decisions (JH Rayner [1989])Lord Mansfield in Triquet v Bath (1764)(whether secretary of Minister enjoyed diplomatic immunity. Took view that DL followed International law ie IL part of English law - the domestic legislation simply added an additional jurisdiction, but not necessary due to presence of CIL) affirms Lord Talbot in Buvot v Barbuit "that the law of nations, in its full extent was part of the law of England"

? Cf Lord Bingham in R v Jones [2006], though willing to accept that customary international law is part of the law of England and Wales, hesitated to embrace the proposition 'in quite the unqualified terms' in which it has often been stated, sympathizing with the view that customary international law is not a part, but is one of the sources of English law

The need for an unambiguous rule of CIL Establishing the CIL rule with sufficient certainty often a major challenge J.H. Rayner [1989] Ch 72 (CA), 209 (Nourse LJ) J.H. Rayner [1990] 2 AC 418, (HL), 513 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia
[2007] 1 AC 270, 298, 1447, para. 63

A rule of international law becomes a rule only when it is certain and is accepted generally by the body of civilised nations. It is not for a domestic tribunal in effect to legislate a rule into existence for the purposes of domestic law and on the basis of material that is wholly indeterminate. The ordering of competing principles according to the importance of the values which they embody is a basic technique of adjudication. But the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to "develop" international law by unilaterally adopting a version of that law which, however desirable, forwardlooking and reflective of values it may be, is simply not accepted by other states (Jones v Ministry [2007]) An uncertain question of international law is one which cannot be settled by reference either to an opinion of the International Court of Justice or to some custom, usage or general principle recognized by most nations. Where it is necessary for an English court to decide such a question, it may be guided by municipal legislation and judicial decisions, treaties and conventions and the opinions of international jurists; and, where no consensus is there found, by reason and justice.

2. DOCTRINE OF INCORPORATION Customary rules are automatically considered part of the common law provided that they are not inconsistent with Acts of Parliament. This doctrine was endorsed by Lord Denning MR in Trendtex v Central Bank of Nigeria [1977]
(whether Bank of Nigeria immune from suit. Question of whether "government control" and "government function". International law incorporated into domestic law unless it was in conflict with statutory provision. This enabled domestic law to respond to changes in international law rather than it being bound by the interpretation of international law upon a particular point when it was first

decided, if international law had later evolved. Domestic law could evolve as the incorporated international law evolved)
? Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553-4 (Lord Denning) "[The doctrine of incorporation] says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament ...
As between [incorporation and transformation], I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law ... International law does change: and the courts have applied the changes without the aid of any Act of Parliament ... it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows too, that a decision of this court - as to what was the rule of international law 50 or 60 years ago - is not binding on this court today. International law knows no rule of stare decisis."
? Ie says doctrine of incorporation is correct and transformation is wrong-

Lord Atkin in Chung Chi Cheung v R [1939] PC at [167] "On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals" Lord Steyn in Re McKerr -> accepts the possibility that a procedural obligation to right to life accepted by customary international law, but first case where right to life was recognized was in McCann v UK [1995] which was 13 years before the incident in this matter occurred - therefore unsure if this procedural obligation was a customary international law in 1982 ie at the time of the case
? But accepts the possibility that international custom can be incorporated into local law

Reconciling Trendtex with R v Chung Chi Cheung (customary law incorporated unless inconsistent with common law)-

If common law based on development in IL, then evolving customary international law would mean can overrule the line of common law cases that develop from the old customary law - Trendtex If common law not based on IL then customary law inferior to common law
- R v Chung Chi Cheung

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