International Law i week four

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  • 1. Public International Law I LAW510 International Law and Municipal Law 26 September 2013
  • 2. Introduction • The relationship between IL and municipal law poses two problems: 1. Theoretically, i.e. whether they form part of one universal legal order or are two distinct systems of law; and 2. Practical, .e. how to resolve a conflict between IL and municipal law.
  • 3. Relationship between International Law and Municipal Law • 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. • Dualism: • IL and municipal law are two independent and separate system. • Neither legal system has the power to create or alter the rules of the other. • However, as they may regulate the same subject matter a conflict may arise in each a municipal court will apply municipal law. • Should this cause a breach of IL then this would be a matter to be settled by means of diplomatic protest or of a judgment of an international court.
  • 4. • Monism: • There are many varieties of monism but its man premise is that IL and municipal law are part of the same legal order. • As they may regulate the same subject matter any conflict between the two would be solved in favor of IL. • Third theory: Formulated by Sir Gerald Fitzmaurice. • He argued that as the systems of L and national law do not operate in common fields they can never come into conflict, but what occur is 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.
  • 5. • 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…”
  • 6. • 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.
  • 7. • 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…”
  • 8. Municipal Law before the International Courts and Tribunals • The rule is that in the event of conflict between Il and national law, IL prevails. • Draft Declaration on Rights and Duties of States 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.
  • 9. • The PCIJ in German Interests In Polish Upper Silesia held that the only law which it could apply was international law. Whilst a state cannot invoke the provisions of its internal law as justification for its failure to perform a treaty, an international court could review the municipal laws of one of the parties to determine to what extent the party was observing its international obligations: From the standpoint of international law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of states, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such but there is nothing to prevent the Court’s giving judgment on the question whether or not in applying that law Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.
  • 10. • A state cannot rely upon its municipal law to avoid its international law obligations. Alabama Claims Arbitration 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.
  • 11. • 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.
  • 12. Triquet v Bath In this case, in which the defendant, a domestic servant of the Bavarian Minister to Great Britain, successfully claimed diplomatic immunity, Lord Mansfield discussed the position of international law in English law.
  • 13. • Lord Mansfield. I remember in a case before Lord Talbot of Buvot v Barbuit upon a motion to discharge the defendant (who was in execution for not performing a decree), ”because he was an agent of commerce, commissioned by the King of Prussia, and received here as such,” the matter was very elaborately argued at the Bar; and a solemn deliberate opinion given to the Court. These questions arose and were discussed...”what ways the rule of decision: the act of Parliament or the law of nations. “That the law of nations, in its full extent was part of the law of England.”
  • 14. IL before the UK Courts • Two doctrines that are, incorporation and transformation. • Under the doctrine of incorporation, IL becomes automatically part of municipal law without any express act of adoption, i.e. any positive act on the part of the State. • This entails that a signed and ratified treaty becomes part of municipal law without any need for legislation being passed to give that treaty a binding legal effect in municipal law. • Similarly, rules of customary law will not require any implementing legislation in order to become part of municipal law of the state concerned. • In Buvot v Barbuit the Lord Chancellor Talbot declared: ‘That the law of nations, in its full extent is part of the law of England.’
  • 15. • Under doctrine of transformation, IL in order to become part of municipal law must be ‘transformed’ into municipal law. • This requires a positive act on the part of the state consisting of enacting domestic legislation which will give effects in municipal law to international law. In R v Keyn (1876) is often cited as one which supports the doctrine of transformation. …English court did not have jurisdiction in the absence of an Act of Parliament granting such jurisdiction. This decision has been interpreted as supporting the ‘transformation’ approach and as displacing the doctrine of incorporation.
  • 16. The current 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 IL and English law in the following terms: ‘…Under the doctrine of incorporation, when the rules of IL change, our English law changes with them. But, under the doctrine of transformation, the English law does not change. It is 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 IL.’
  • 17. • 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 IL ‘form part of the common law of England,’ whilst Lord Millet emphasized that ‘customary IL is part of the common law.’ • Certainly, the court have been reluctant to apply principles of the common law which conflict with customary IL. • In Westland Helicopters v Arab Organization for Industrialization, Colman J confirmed the doctrine of incorporation.
  • 18. International Treaties and their relationship with English law • With regard to treaties, dualist approach has been adopted in the UK. • When a change in domestic law is required to give effect to treaties, they become part of English law only if enabling legislation, primary or secondary, has been passed. • In most cases, this is done by an act of Parliament.
  • 19. Malaysia • Malaysia’s acceptance of IL depending on the following legislations: 1. Federal constitution 2. Civil Law Act 1956 3. Membership in IGOs 4. Treaties 5. Acts of Parliament 6. Judical decision
  • 20. THANK YOU contacts: shahrizalzin@salam.uitm.edu.my