Chapter 4: International law and Municipal law Flashcards
What does International law primarily deal with?
inter-State relations
What does municipal law deal with?
The relationships between individuals and the relationship between an individual and the State
What are examples of overlapping issues that apply to International and municipal law?
environment, trade, and human rights
What are the two conflicting doctrines that define the relationship between international and municipal law?
Monism and Dualism
What is Dualism?
- Dualism emphasises the autonomy and distinct nature of municipal law, in which the state is supreme an sovereign
- neither legal order has the power to legislate over the other
- if aninternational law is proposed, then it must be transposed into the municipal legal order to be held valid
What countries use the dualism doctrine?
UK and the United States
What is a significant limitation of the dualism doctrine?
it fails to address the increase in overlapping issues, between, International and municipal law
What is Monism?
- Monism believes in a more coherent relationship between international and municipal law, their validity deriving from each other
- International laws are directly applied into municipal law without being transposed
What countries use monism?
Civil law jurisdictions such as France, Spain, Netherlands and Germany
How is international law applied into municipal law in Monism?
- by operation of the constitution and requires no further enabling legislation
- It is “self-executing”
How did Hans Kelsen see Monism?
International and municipal law derived their legal orders from the same single source, which is the “Grundnorm”
International norms would automatically apply in municipal orders without being transferred.
Any municipal law that would go against international law would not be void but rather entail the responsibility of the State
How did Lauterpracht build onto Kelsens Theory?
A unified system would be applied in which international law would sit at the apex and would set the legal conditions as they are based on human rights
How did Lauterpracht build onto Kelsens Theory?
A unified system would be applied in which international law would sit at the apex and would set the legal conditions
How would monism be regarded as as per Lauterprachts theory?
International law
How would monism be regarded as as per Lauterprachts theory?
International law
How would monism be regarded as as per Lauterprachts theory?
International law has moral content and is claimed to be universal.
What is the hybrid theory of Rosseau?
International and municipal law would be separate, but inc case of conflict international law would not repeal a municipal law but would rather mitigate the conflict through addressing the rules of State Responsibility
Whose prerogative is it to choose whether they act under the Monist doctrine or the dualist doctrine?
The states
What is meant with “the primacy of international law” in the case of municipal law within international law?
A state may not invoke it own municipal law as a justification, as a justification when they have broken a international obligation (Article 3 ICL and Article 27 VCLT)
What is a strictly regulated exception to this rule?
A state can argue that its consent to be bound to a international treaty has been violated, if the violation manifested and concerned a fundamental importance of a rule within internal law.
What does it mean when it is said that Internal law must comply with valid international obligations?
When a state has assumed a international obligation, this international obligation must be reflected within internal law for the obligation to be fulfilled (PCIJ Exchange of Green and Turkish Populations case)
When does a breach arise that internal law must comply with international obligations?
There must be a specific failure to apply an international law obligation
What happens if the State is in failure of adjusting internal law to a international obligation?
The state becomes liable of any breach, even if it was in compliance with the domestic law.
How should an international court examine municipal law?
They treat the facts which express the will and constitute the activities of States.
How should a international court apply national law?
They should apply international law according to the interpretation of the State and should not contradict the rulings of domestic courts, as seen in PCIJ judgements
What is an exception as to the usual way of how international courts apply national law?
In the Diallo case, it can be seen that in special circumstances may depart from national interpretations if they are manifestly incorrect.
In what cases must municipal law mirror the decisions of international law?
- In investment law, countries must have the same definition as to what a national is, as this has an implication, as to how the case is handled
- in the case of the 1984 Tortutre convention and the 1948 Genocide Convention, all countries must have a uniform definition of genocide and torture
- in the case if environmental conventions, States must have the same definition of a polluting substance and must adopt certain procedures.
Do countries incorporate customary international law into municipal law?
National systems acknowledge and recognise customary international laws into their municipal legal systems
In which cases can it be seen that a common law countries incorporate customary international law into municipal law?
- UK: Trendtex v Central Bank of Nigeria
- US: Paquete Habana case
What is an exception of the UK to this principle?
The Keyu case held that International law can only influence common law if it is consistent with the constitutional principles of the country
How is international law implemented in municipal law in civil law countries?
- Article 25 of the German Basic law explains that the general rules of public international law form a part of federal law, prevails internal law, and in sight of this creates rights and obligations upon its citizens. The same goes for Portugal and Spain.
- France accepts the application of international law within its internal courts
What are the two methods of treaty implementation?
- The Incorporation upon ratification into the municipal legal order.
- The translation of an international law treaty provision into national law by a legislative act.
How are treaties incorporated into civil law systems in principle?
Treaties are automatically implemented into internal law, upon the official publication of the treaty into official records but it does not need legislative intervention
How are treaties implemented into French legislation in practice?
- France: ordinary treaties can be ratified by the president, specialised ones must be ratifies by the French parliament, and they do not override the constitution
How are treaties implemented into Spanish legislation in practice?
- Spain: treaties are a part of domestic law as long as they are compatible with the Constitution
How are treaties implemented into German legislation in practice?
- Germany: if a treaty regulate political relations or relate to subjects of federal legislation require ratification through federal statute (Bundesrat)
How are treaties implemented into Dutch legislation in practice?
- Netherlands: Treaties have supremacy if they are approved by the States General
How are treaties applied into internal law of common law countries in practice?
Treaties have supremacy over national law but the courts must create legislation in a manner that it does not conflict with international law even if the treaty is not fully incorporated
What are two major cases that explain the incorporation of treaties in the UK
- Saloman v Commissioners of Customs and Excise: unincorporated treaties may be applied in courts as they form background to a statute
- Alcom v Republic of Colombia and others: Uk courts must act in compliance to international law, unless a specific statute requires them to do otherwise
What does the second method of implementation of a treaty into internal law explain?
That for a treaty to be held valid, it must be translate the treaty provisions into the domestic law by ways of a legislative act.
Where does the second method occur and what does it represent?
It mostly occurs in dualist systems and represents a form of domestic control and the need for legislative consent
What cases explain the second method the best within the UK?
- Thomas v Baptiste: a treaty entered into by the executive branch can not override national law until it has been incorporated through enabling legislation
- Maclaine, Watson and Co: a royal prerogative to enter a treaty doesn’t extend to altering the law, applying or depriving rights upon individuals, without the intervention of Parliament
What are the implications of Brexit upon the applicability of EU law in the UK?
The Withdrawl Act of 2018 repeals the direct effect of EU law in the UK and opens all valid EU law subject to amendment or repeal
How are treaties applied in US?
All treaties entered into validly are considered as to being law of the land, and enjoy the same level of effectiveness, as federal legislation (Forster v Nelson)
Article II §2 of the Constitution states that the Senate may identify certain parts of a treaty as self executing
What case explains the the conditions for a self executing obligation of a treaty within the US?
Sei Fujii v California: a self executing provision of a treaty are those that impose obligatons or create rights upon individuals
What does the executive and questions of international law before national courts problem mean?
As in most countries the conduct of foreign relations falls to the executive branch and the national courts are called upon to resolve any issues that may arise in the case of whether a national law conflicts with a States international obligation, the question arises if the executive can give guidance to the national courts on questions of international law.
How is the problem of the executive and the national courts on matters of international law solved within France?
In France, the Counseil d’etat may seek guidance from the Ministry of Foreign affairs on the construction of an international treaty but they may deport from the advice, if the treaty is proven to be sufficiently clear
How is the problem of the executive and the national courts on matters of international law solved within the USA?
In the USA, the executive can give suggestions to the courts in case of sensitive questions concerning a international treaty, but may ignore this advice if the State Department gives advice on an Act of Stat or sovereign immunity.
How is the problem of the executive and the national courts on matters of international law solved within the UK?
In the UK it less usual for the executive to intervene but when establishing certain facts on matters such as a foreign state or government, or whether diplomatic immunity exists, in respect to certain international treaties, the executive branch may issue “executive certificates’’ after a request from a national court.
These executive certificates are seen as conclusive but can be seen as reviewable, if seen as irrelevant to the scope of the. case or they are seen as they are not authentic.
What does the notion of justiciability mean and where do they primarily exist.
The notion of justiciability primarily exists in the UK and the US and it suggest that there are limits as to what matters a national court can adjudicate upon.
What are non justifiable matters?
Matters upon which a court can not adjudicate and are usually understood as matters that touch upon sensitive issues of foreign relations?
What are some non-justiciable issues in the UK?
the making of war and peace and the disposition of armed forces, the conduct of foreign affairs
What effect do non justiciable matters have in the USA?
They prevent the courts from considering sensitive political issues in the field of foreign affairs, as it would be inappropriate
otherwise also known as the ‘political question’ doctrine
When has the ‘political question’ doctrine been applied?
In relation to political status of a foreign entity, the conduct of foreign affairs, and the conduct of the armed forces
What is an exception to the ‘political question’ doctrine?
Kirkpatrick v Environmental Tectonics: because the validity of a foreign sovereign act wasn’t an issue
In France, when does a act de government remove the French tribunals competence to adjudicate on an executive act?
- an acts that influence Frances wishes in international law and only apply to French foreign relations
- an act that concerns the validity of a French action from the standpoint of foreign policy.
What is Germanys stance on judicial deterrence?
There is no tradition of non-justiciability, as the Federal Constitutional Court commonly hears cases on associated with the enforcement of Baic law as well as the deployment of armed forces. Making them justiciable.
But judicial reviews of foreign policy and defence are inadmissible.
How does a domestic court give effect to the laws or executive acts of a foreign state that breach international law?
National courts in these cases are asked to check the relevant international provision and determine if the act of another State has been breached
What do national courts risk by determining a breach of international law of another State?
They risk destroying foreign relations and embarrassing the executive branch.
What does the doctrine of judicial restraint mean within the US?
As seen in the case of Underhill v Hernandez sovereign states must respect each others sovereignty, and as such should not sit in judgement of the acts of State of another countries territory
What similar doctrine has the UK adopted in sight of judicial restraint?
As seem in the case of Buttes Gas and Oil Co v Hammer courts cannot tule on transactions of foreign States
How was the doctrine of judicial restraint challenged in the UK?
In the case Kuwait Always Cooperation vs Iraqi Always Coporation it was seen that a lw depriving ownership of poperty in the case of plundering won’t be enforced or recognised because it is against English policy.
International law says that a national court can decline to give effect to acts of State breaching International law
