#14976 - International Law And English Law - Public International Law

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 PLANE

• Treaties

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

Article 32 ARSIWA

Article 27 VCLT

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 sailing

• Held 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 pleador 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.

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...