#2401 - Relationship Between Pil Eu And Domestic Law Notes - Public International Law

The relationship between international law, European Union law and English law.

• determine in what way they have regard to one another,

  • how the substantive law of each system is pleaded in the respective other systems

  • how this law is applied,

which necessarily involves making a conclusion on the supremacy of the laws, and possibly the legal systems, in question.

• 3/4 possible theories:

  • the Monist

  • the Dualist

  • the theory of functionalism/constitutional or legal pluralism

  • the half theory (as per Ziegler) of Fitzmaurice

• Monism

  • Monist theories posit that all law is part of one legal system

    • the laws govern the same subject and are incorporated without any need for implementation by the national legislator.

    • While Monist theories do not necessarily contain statements about the hierarchy of the systems, the most prominent proposer of this theory, Hans Kelsen has proposed the primacy of the IL though, as Ziegler points out, this is not necessarily a facet of all monist theories.

• Dualism

  • Dualism may be considered the contrasting theory to monism: such theories perceive both IL and national law as different legal systems

    • the subject-matter of each system is essentially different and each system is essentially supreme in its own sphere.

    • In dualist theories, international law is not automatically incorporated into the state.

    • Ironically, what is important to note in both theories, is that whatever theory is operative for a state, the choice of that theory is determined by the decision of the state, so one might say that even monism has a dualist element in the very basic sense that the theory must be adopted by choice. (Zielger’s thought)

• Bethlehem’s formulation of functionalism:

  • he regards the EU as the “intruder” to the time-honoured debate over the relationship between IL and national law, characterized by the Monist-dualist debate.

  • He argues that EU law has “fundamentally reconceived the relationship between national law and “inter”-national law, at least for the Member states”, presupposing a different relationship between international law (more generally) and national law.

  • Traditional theories of Monism and Dualism cannot correctly define the relationship between EU, IL and national law, and further such an attempt at “systemic integrity” is damaging as it “mis-describes the reality”, perpetuating “the myth about the personal and material limits of each system of law” and “goes some way to subverting the effectiveness of rules of law that depend on interactive application”.

My opinion on this

• the theory of functionalism, favouring practical cooperation and interaction, as propounded by Bethlehem, which rejects any reference to the Monist/Dualist dichotomy and formalism, is too simple.

  • his analysis is accurate,

  • BUT it does not succeed in describing the entirety of the relationship – the formal theories recommend themselves by allowing some conclusion to be arrived at in the supremacy discourse between the legal systems.

The relationship

• The EU, in its origins as the European Community and later in the European Communities Act, was a product of a voluntary relationship between sovereign states, with the purpose of creating rights and obligations for its signatories.

• At that point it was considered a treaty, similar to that establishing the world trade organisation.

• However, the development of the EU has made allowed this Treaty to not only become a legal system in its own right but also to impact on the English and international legal systems.

  • In the cases of Van Gend en Loos and Costa v ENEL, the European Union proclaimed itself a new legal order of international law by virtue of its relationship with national legal systems in member states as the Treaty rights and certain types of legislation created by the legislative organs of the EU as well as the ECJ jurisprudence was binding of these national legal systems.

• Positing a definition of “international law”, “EU law” and “national law” cannot escape falling into the territory of analysing the way they relate to one another, as by answering this question, we can determine the boundaries of application:

  • it is certainly no long the case that “international law” can be defined as the law between nations, given the rise of non-state actors, supra-nationalism and individual rights: this expansion as naturally caused overlap between IL and national law.

  • Further, as can be seen in the language of cases questioning the validity of customary international law in UK courts, it is not always clear whether the UK is applying customary international law as IL, subsuming it into the national law or merely reflecting on its presence as an interpretive tool for clarifying the existing UK law.

• The pure monist-dualist dichotomy has been widely rejected as an “old hat”¹,

  • it has been the general academic consensus that they do not explain the complexities of the relationship any longer.

  • They are not dead, but need modification.

• The theory of functionalism claims to offer a modern explanation of the relationship between IL, EU law and national law.

• Bethlehem states the following facts about the 3 legal systems:

  • in terms of the relationship of EU law to English law, the national law, where it constitutes general principles of law may be a source of law for Union law;

  • the Union’s very adoption of “general principles of law” shows the relation to international law, as the same source of law is to be found in the statute of the Permanent Court of Justice and now the replacement statute of the ICJ (Art 38.C.).

  • further, international law may also be a source of law for the Union where international treaties, to which the Union is a party, are concerned.

  • National law may too be a material source of international law as the constitutive element of customary international law as national law can provide evidence of state practice.

  • Finally, though not stated by Bethlehem, international law in English national law finds a voice not only in the treaties that the UK is party to (though the UK has taken the view that to be invoked in Court, there must have been an act of implementation by Parliament), but also in the application of customary international law by the Courts, which is done without the need for implementation, so long as it does not contradict the national law, or impose new criminal law unconstitutionally².

• However, the enunciation of the above only shows that the legal systems have had influence on one another – they have a relationship of some sort:

  • while this is conclusion of Bethlehem’s theory of functionalism and interaction, this does not answer the question what this relationship is by addressing how the laws of the different legal systems are applied or the question concerning supremacy.

• Bethlehem further argues that the interaction of policy evidences the validity of the conclusion that the relationship of the 3 legal systems is characterised by functional competence.

  • dearth of evidence on this point in his work³

  • the important question the functionalist theory neglects is what does the relationship look like in terms of supremacy.

    • As such, this theory appears to be a theory of political relations rather than a description of the relationship between legal systems.

    • The failure of the theory to achieve its aim can be seen by the failure to offer a workable explanation for cases, challenging the supremacy of one legal system over another, like Kadi⁴.

• Kadi was a “landmark decision” of the ECJ,

  • a conceptual “leap in the constitutionalism of the legal order of the European Community, reinforcing the ECJ’s case law on the relationship of EC and public international law”⁵.

  • The case concerned the question of whether the Security Council’s, the “legislating⁶” arm of the UN, anti-terror regulations, which froze the assets of suspected terrorists, were “legal” or whether this was against Kadi’s human rights.

  • In the Court of First instance, Kadi failed: the Court felt it was bound by art. 103 of the UN Charter, which states “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”: the Court said it would only ever review such regulations if they contravened a ius cogens norm.

    • Such a judgment would indicate the formal relationship of the EU to international law to be one of subordination in so far as the treaty of the UN charter is applicable.

  • However, Kadi went to the ECJ: the ECJ annulled the implementing act of the Security Council resolution: further, the Court did not apply international law to find that the regulation contravened fundamental rights, instead it applied its own law concerning human rights, implicitly refusing not only the application but also the influence of international law from the Security Council in making its judgment.

• Kadi can therefore be considered an example showing that some courts are willing to impose limits in how far they will heed international law.

• After Kadi, there were cases concerning the same fact matrix in the UK courts: the UK courts refused to apply the Security Council resolution, in line with the judgment of the ECJ – while this does not prove the UK’s rejection of the its obligations under international law, it evidences a hierarchy in the 3 systems: the EU can limit the UK’s abilities to act, obligations and rights in international law⁷, thus positioning itself, as Bethlehem acknowledges, between...