PIL: L6 – International Law and Domestic Law
International Law and Domestic Law:
IL as defence to domestic crime – e.g. R v Jones [2006] UKHL 16 (clash?)
Judicial dialogue – between national and international courts
Using domestic courts to enforce international law
The relationship – theories: Dualism vs Monism
Dualism:
- International law merely external law of the state
- ‘…two spheres that at best adjoin one another but never intersect’ (Triepal,
quoted in Janne Nijman and André Nollkaemper, New Perspectives on the
Divide Between National and International Law (OUP 2007) 7)
Monism:
- Unitary view of law
- Power of law in limiting state’s actions
- Assertion of supremacy of international law
Theories vs Reality:
Intermediate position
‘…neither theory offers an adequate account of the practice of international and
national courts, whose role in articulating the positions of the various legal systems
is crucial’ (Brownlie’s Priniciples of Public International Law (OUP 2012) 50)
Practice…
International Law’s approach to ML:
A state cannot justify a violation of IL by relying upon DL
- International Law Commission’s Articles on State Responsibility: Art 3 –
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.
- Alabama Claims, Moore, 1 Int Arb 653
(http://legal.un.org/riaa/cases/vol_XXIX/125-134.pdf): and whereas the
government of Her Britannic Majesty
- Treatment of Polish Nationals in Danzig Territory (1932) PCIJ Ser A/B No 44,
24: ‘…a State cannot adduce as against another State its own Constitution with a
view to evading obligations incumbent upon it under international law or treaties
in force’.
General duty to bring DL in conformity with IL
- Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 20: ‘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 fulfilment of the obligations
undertaken.'
Supremacy of IL
- Applicability of the Obligation to Arbitrate, ICJ Reports, 1988, pp. 12, 34:
‘fundamental principle of international law that international law prevails over
domestic law’
International Law and Domestic Law:
IL as defence to domestic crime – e.g. R v Jones [2006] UKHL 16 (clash?)
Judicial dialogue – between national and international courts
Using domestic courts to enforce international law
The relationship – theories: Dualism vs Monism
Dualism:
- International law merely external law of the state
- ‘…two spheres that at best adjoin one another but never intersect’ (Triepal,
quoted in Janne Nijman and André Nollkaemper, New Perspectives on the
Divide Between National and International Law (OUP 2007) 7)
Monism:
- Unitary view of law
- Power of law in limiting state’s actions
- Assertion of supremacy of international law
Theories vs Reality:
Intermediate position
‘…neither theory offers an adequate account of the practice of international and
national courts, whose role in articulating the positions of the various legal systems
is crucial’ (Brownlie’s Priniciples of Public International Law (OUP 2012) 50)
Practice…
International Law’s approach to ML:
A state cannot justify a violation of IL by relying upon DL
- International Law Commission’s Articles on State Responsibility: Art 3 –
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.
- Alabama Claims, Moore, 1 Int Arb 653
(http://legal.un.org/riaa/cases/vol_XXIX/125-134.pdf): and whereas the
government of Her Britannic Majesty
- Treatment of Polish Nationals in Danzig Territory (1932) PCIJ Ser A/B No 44,
24: ‘…a State cannot adduce as against another State its own Constitution with a
view to evading obligations incumbent upon it under international law or treaties
in force’.
General duty to bring DL in conformity with IL
- Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 20: ‘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 fulfilment of the obligations
undertaken.'
Supremacy of IL
- Applicability of the Obligation to Arbitrate, ICJ Reports, 1988, pp. 12, 34:
‘fundamental principle of international law that international law prevails over
domestic law’
