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Relationship Between International & Domestic Laws I - Coggle Diagram
Relationship Between International & Domestic Laws I
The difference
Domestic law:
Governs the
domestic aspects of government
and deals with issues between individuals, and between individuals and the administrative apparatus
International law:
Focuses on the
relations between states
The application of municipal law before international tribunals
General rule:
A state cannot plead the provisions of its municipal law as a valid reason for violating international law
Reasons obvious because any other situation would permit itnernational law to be evaded by the simple method of domestic legislation
In essence - when a binding international obligation exists for a State, it must fulfill that obligation irrespective of whether its municipal law permits it to do so or forbids it from doing so
If a change in munipal law is required to fulfill international obligations, the State should make that change
Alabama Claims Arbitration [1872]:
Facts: US objected when Britain allowed a Confederate Ship to sail from Mareyside to prey upon American shipping
Held: The
absence of British legislation
necessary to prevent the construction or departure of a vessel could not be brought forward as a defence. Britain had to pay damages
Texaco v Libya [1977]:
Dispute arose out of the nationalisation by Libya of foreign-owned property in 1973-74. Owned by 2 US companies. Contract was internationalised. Thus expropriation unlawful
Internal law and observance of treaties - Art.27:
A party may not invoke the provisions of its
internal law
as justification for its failure to perform a treaty. This rule is without prejudice to Art 46
So far as treaties are concerned, a party may not invoke the provisions of its internal law as justifications for its failure to carry out an international agreement
Provisions of internal law regarding competence other than conclude treaties - Art.46:
State
may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance
A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and good faith
When is municipal law important?
Settlement of disputes between States may only take place by reference to concepts defined in the municipal law of either party
E.g.
Nottebohm Case [1955]
- 'it is for every sovereign state, to settle by its own legislation to the rules relating to acquisition of nationality
Municipal law may be
evidence of State practice
Municipal law may serve as
evidence of 'facts'
before an international tribunal
e.g. the extent of a State's claim to maritime jurisdiction may be evidenced by its municipal law -
Anglo-Norwegian Fisheries case
Municipal law can be
evidence of compliance with international obligations
International court may judge the adequacy of municipal law in meeting the international obligations it was designed to satisfy
Certain German Interests in Polish Upper Sillesia case:
"the Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Courts giving judgement on the question whether or not, in applying that law, Poland is acting in conformiting with its obligations towards Germany under the Geneva Convention"
Main Theories
Monism:
Supremacy of international law
Direct application in domestic sphere
Conflict International law prevails
Hersch Lauterpacht:
Member of the ILC from 1952-1954
Judge of the ICJ from 1955-1960
Uphold a strong ethical position with human rights
Sees the primary functions of law as concerned with the well-being of individuals
Advocate: supremacy of international law is the best method to attain this
Hans Kelsen:
Legal and political philosopher
Laws lays down patterns of behavior that ought to be followed, and provides for sanctions and punishments if they are not followed. Logically, this definition applies to both IL and DL
International law is more basic (and superior) than domestic law
Supposes that international law and municipal law are simply 2 components of a single body of knowledge called 'law'
Both sets of rules operate in the same sphere of influence and are concerned with the same subject matter
If there's conflict - international law will prevail
Writers who adopt the monist approach fall into 2 categories -
Lauterpacht - uphold strong ethical position with deep concern for human rights
Kelsen - who maintain a monist position on formalistic logical grounds
Dualism:
Supremacy of State
International law and national law treated as 2 independent separate legal system
Conflict? apply own laws
Denies that international law and municipal laws operate in the same sphere, although it does accept that they deal with the same subject matter
Triepel - international law regulates the relations between states whereas municipal law regulates the rights and obligations of individuals within states
Dual legal systems operating simultaneously in respect of the same rights and obligations
Theory does accept the possibility of conflict as the same subject matter is dealt with - the theory recognises that each system applies its own law unless the rule of that system say otherwise
Positivistic in nature - stresses the overwhelming importance of the state
The 3rd Approach
Modification of the dualist position - more practical, less theoretical, promoted by
Fitzmaurice
and
Anzilotti
Denies that international law and municipal law ever operate in the same sphere and that there is no common field of operation
Therefore one system is not superior or inferior - each superior in its own sphere
Treat them as 2 distinct legal systems each operating within its own
There may be 'conflict of obligations'
Shaw: Domestic position unaffected by breach of international obligation - but remedy will lie in the international field
Similar to dualist apporach in terms of theory and practice