International Law 3

Relationship between International Law

and

Domestic Law

Theories of Relationship

• Monism/ unity of the legal system

• Dualism/separation of legal system

• Moderate or middle path

Concept of Monism

• The monists view that

- there is no difference between national and international

law. They think that the science of law or the body of law is

the law itself. The national law and the international law are

the just two branches of a single body of science of law. They

are the constituent elements of a single body of law.

• They argue that

-the rules of both international and national law operate in the same sphere

of influence and concerned with the same subject matter, that is,

individuals. What ever legal systems we deal with, be it national, regional

or international, all are meant to be dealing with individuals. In the words

of Lauterpacht, state does not exist as a legal entity on its own. It is the

individual human beings that are the fundamental element of all societies.

Continued…

- the purpose of both legal systems is identical.

- the rights and obligations of one legal system can be transferable to other

system. For example, human rights are available in domestic legal system

as well as in international legal system.

-national and international law are complementary or supportive to each

other in the sense that rights and obligations under both systems are there to

serve the interests of people.

• Kelsen, the monist positivist argues that international law derives from the

practice of states and national law derives from state as established in

international law.

• The monist naturalists argue both systems are subject to higher legal order,

the law of nature.

Concept of Dualism

• Dualists argue that

a. international and national law are completely two separate

and distinct legal systems.

b. they operate into separate water-tight compartment.

c. they do not operate in the same sphere of influence.

• International law and national law differ as to their sources, the

relation they regulate and their legal content and application.

• National legal systems are not common, they are diverse and

thus they can not interact with international law because of

significant diversity and the international laws are common in

nature.

Continued…

• International law regulates the relations between states where as national law regulates the rights and obligations of individuals within the states.

• There is no room for the transforming rights and obligations from one system to another. Because, the individuals are the citizens of a country and subject to the national law. In addition, the sources and the subject of both systems are different. There are many points where they come into conflict.

• National law operates vertically where sovereign power of the state is the law-maker and all others are law-abider while international law operates horizontally where states are both creator and abider of the

Moderate or middle ground (a third group)

• This is the theory of coordination, not confrontation like monism and dualism.

• This theory supposes that both monism and dualism are the extreme expression of articulating the relationship between national and international law which is flawed more or less, because they do not cooperate and conflict perse.

• It argues against dualism that international and national law interact and intersect. The conflict lies with the obligation created by them, not with system itself.

• It argues against monism that the transfer of rights and obligations as monists claim is not automatic ( (see the decision of Federal Court in Minister for Immigration and Ethnic Affairs v Teoh 1995: the place of unincorporated treaty in Australian law was not considered).

Continued…

• The transfer of rights and obligations can be possible through a

process of incorporation, harmonization and adoption. In

another words, there must be a mechanism through which

rights and obligations can be transferred from one system to

another. For examples, adoption of treaty provisions into

national law, European Union’s plan to harmonize the 27

conflicting domestic laws

• The dualist view is not quite true that obligations of international and

domestic law are not transferable. For example, as per Art.38(1) (c)

domestic law is a fertile source of international law at the formative stage.

Another example is, there are too many areas of domestic law which are

influenced by international law such as human rights, environmental law,

trade law, and law of international rivers or multi-territorial rivers.

Continued…

• It argues that both systems benefit from each other.

• It is true that international will not interfere in internal

matter of a state . But this principle of non-interference on

the part of international law is not absolute.

• It also argues that it is erroneous for both groups to argue that two legal

system conflict or unify among each other. It is the obligations that emanate

from the systems can come into conflict. It is evident in many cross-

boarder issues such as terrorism, human rights, environment, global

worming. In all these issues the interests of state and the interests of people

are different. For example Chine’s human rights law can come into

conflict with various human rights obligations developed in UN human

rights instruments.

Conclusion

• National and international legal system operate in their own

domain without any presumption of conflict or hostility to

each other.

• Both systems are important and mutually supportive and

interacting with each other in contemporary context in relation

to many trans-boundary issues. For example, state has the

primary responsibility for the implementation of HR, the

secondary responsibility lies with international authority

formed under international law.

Continued…

• International law is not concerned at all about domestic law

unless a domestic law or domestic Act infringes or violates the

assumed or assigned international obligation ( for that state)

emanating from international law. Examples can be taken

from forms of government or South African apartheid policy

under Article 4 ( discriminates indigenous black voters) of

the Electoral Act as well as in the constitution of South

Africa violated an obligation as they assumed by ratifying

1965 UN Convention on the Elimination of Racial

Discrimination. Here the obligation of domestic law comes

into conflict with international obligation.

Relation between national and international law:

Australian perspective

• International customary law is not automatically a part of

Australian law. In Chow Hung Ching v R Lathman CJ argued

‘international law is not as such part of the law of

Australia…but a universally recognised principle of

international law would be applied by our courts’. • The ruling in Mabo v Queensland ( No2) recognises the

normative relevance of customary international law to the

Australian common law and their relationship more exact

with greater authoritative weight, but does not endorse the

automatic incorporation theory. International law is thought to

be an influence on , rather than part of common law.

Continued…

• International treaty obligations voluntarily assumed by Australia do not necessarily have legal effect within Australia. To create treaty obligation within Australia, incorporation of treaty into national law through the enactment of implementing legislation is essential.

• Obligations under unincorporated treaties are not binding in Australia. In Minister for Immigration and Ethnic Affairs v Teoh case, the High Court held that treaty is not a part of Australian law until enacted as legislation, however the ratification of convention has significance, it is not a mere ineffectual act.

Continued…

• Relevance of international treaties in interpreting

domestic statutes:

In Polities v Commonwealth it is recognised that a

statute is to be interpreted and applied , as per as its

language permits, so that it is in conformity, not in

conflict with the established rules of international

law.

Influence of international law on domestic law in

Australia

• Influence of human rights treaties: In Mabo Case Brennan J said:

The opening up of international remedies to individuals…brings to

bear on the common the powerful influence of the Covenant and the

international standards it purports.

• Infusion of international law and jurisprudence into Australian

common law in the field of human right has been established

through judicial activism. ( see Theophanous v Herald & Times Ltd,

Levy v Victoria, language v Australian Broadcasting Commission,

Kruger v Commonwealth ( stolen generation case).

• Influence of trade and investment treaties

The subject of, and personality in , International Law

• The concept of subject of international law is not same as

international legal personality.

• The subject of any legal system is all about rights and

obligations. If certain rights are conferred on an entity under

a legal system and that entity is required to perform certain

duties under that legal system, the entity is the subject of that

legal system.

• When international law creates some rights for an entity and

imposes some obligations, that entity becomes the subject of

international law.

Continued…

• Broadly speaking, according to Martin Dixon, the main capacities of an international legal person include the ability

- to make claims before international ( and national) tribunals in order to vindicate rights given by international law;

- to be subject to some or all of the obligations imposed by international law; and

- to have the power to make valid international agreements binding in international law.

• legal personality in international law does not mean only the holders of rights and obligations under international law, but also include the capacity/ability to be the bearer of international legal rights and obligations.

What is international legal personality ?

• Attributes of international legal personality include

- capacity or ability to exercise rights conferred upon by

international law;

- capacity to be the bearer of rights and duties conferred upon

by international law

- capacity to perform obligations imposed upon by

international law; and

- capacity to sue and be sued under international law

Subjects of international law

• States

• Non-state entities: international organizations,

individuals, colonial, trust and non-self governing

territories

• Controversial subjects: emerging State and

revolutionary regimes

State as a subject of international law

• Historically since the emergence of legal positivism in the 16th and 17th centuries states were the sole subject and sole legal person of international law until 2nd WW. But after that States are no longer the sole subject of international law.

• States are nevertheless the most important and dominant subject of international law in the contemporary international law as international law was originally conceived as a system of rules governing the relations of states among themselves. They have all of the capacities required for subject-hood and international legal personality and it is with their rights and duties that the larger part of international law is concerned.

• ICJ says ‘ States are the objective and the principal subject of international law.

• The capacities of other international persons are dependent, at least, initially upon the agreement of states.

• To be a subject and a person of international law the State must have qualifications as set out in Montevideo Convention on the Rights and Duties of States.

Non-state entities: International organizations as a

subject and legal person

• International organizations are recognized as subjects of international law as well as international legal persons such as UN, World Bank, IMF, WTO. These organizations have ample influence on international law-making process more than many sovereign states.

• The international legal personality of UN has been recognized by ICJ in the Reparations case in its Advisory Opinion sought by the UN on its capacity to bring an international claim against Israel for reparations for the death Count Bernadotte. The ICJ held… the organization is an international person….it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims….

• The international voluntary Non-Governmental Organizations ( NGOs) such as Amnesty International (for the protection and promotion of HR ) and Green Peace ( for environment) are also recognized as having the status of international legal personality which they have acquired through their capacity and ability to perform in international plane.

• Organs of national liberation movement enjoys some form of international legal personality specially following the UN Declaration on the Granting of Independence of Colonial Countries in 1960.

Individuals as a subject of international law

• Individuals are subjects of international law from time immemorial and still they are. Only the positivism attempted to curtail their status with an argument that they are the object, not the subject of international law.

• The movement for the protection and promotion of human rights after 2nd WW has elevated the individuals to the status of subject of international as well as international legal person.

• They can enjoy the whole range of recognized rights under international legal system as well as procedural locus standi before various international legal judicial and quasi-judicial forums.

Continued…

• Legal personality established under international criminal law :

a. Article 6 of the Nuremberg Charter: principles relating to

international criminal responsibility of individuals against peace, war

crimes and crimes against humanity

b. Decision of Nuremberg Tribunal: ‘International law imposes

duties and liabilities upon individuals as well as states’. c. Decision of Tokyo War Crimes Tribunal holding individuals for

war crimes

d. Article 4 of the Convention on the Prevention and Punishment of

the Crime of Genocide 1948: ‘ persons committing genocide …shall be

punished, whether they are constitutionally responsible rulers, public

officials or private individuals’.

Continued…

e. The Rome Statute of ICC 1998: Articles 6, 7 and 8 establish individual criminal responsibility for the commission of any of listed crimes such as genocide, war crimes, crimes against humanity etc. irrespective of

the laws of his own country.

f. Mandate given to ICTY and ICTR to prosecute and punish individuals for the commission of atrocities, ethnic cleansing, innocent civilian killings, war crimes and crimes against humanity during Yugoslovia and

Rwandan genocide.

Continued…

g. Art. 6 of ILC Draft Code on Offences against the Peace and Security of Mankind 1987: Individual responsibility for committing , leading, planning, organising and ordering crimes against peace and security

h. Criminal responsibility under other international documents such as art. 105 of UNCLOS regards piracy as a crime of international significance, providing remedies enforceable in international law.

.

Continued…

• All international human rights treaties have

given individuals a long list of substantive

rights, such as ICCPR and ICESCR, Convention on the

Elimination of All Forms of Discrimination Against Women,

Convention on the Rights of Child 1989, UN Declaration on

the Rights of Indigenous Peoples 2007, regional conventions

including European Convention on Human Rights 1950, Inter-

American Convention of Human Rights 1969, African Charter

of Human and People’s Rights 1979.

The status of exiled government in

international law

• General conditions for acquiring international legal

personality by a state government :

• Effective territorial control

• Effective internal stability/political authority

• Power to enter into international relations

Continued…

• The exiled governments may enjoy some form of international legal personality, that means, partial legal personality provided following conditions are met:

1. Ability to prove an effective political control through

• involvement in armed conflict, establishing armed forces,

• Controlling merchant ships carrying its flag,

• rallying a large number of nationals to the cause of liberation of their country,

• maintaining authority over certain parts of its territory and population, and displaying partial effectiveness by undermining the effective territorial control of its enemy.

• Evidence of representative character expressed through public support in democratic election

Continued…

2.Through active participation in international

relations.

3. Ability to conduct external activities governed by

international law. For example, during the war of

liberation, the exiled government of Bangladesh

opened diplomatic missions in London, New Delhi,

Washington, Sweden and Hong Kong.

Organs of national liberation war

• Organs of national liberation war may enjoy

international legal personality, although they have

some functional limitations.

• The reasons/justification or legal foundation for such

status:

a. recognition of war of liberation as international

armed conflict by the1977 Additional protocol 1 to

Four Geneva Conventions of 1948 and thus

regulating the activities of national liberation groups

and freedom fighters under international law

Continued…

b. The war of liberation is intended for establishing the people’s

right to self-determination which recognised as fundamental right

and protected by international law (see art.1(1) of ICCPR, 1966,

art.1(1) of ICESCR,1966). Moreover, attainment of this right is

one of the cardinal objectives of UN charter. ( see art.1(2). The

denial of this right constitutes a breach of specific and obligatory

provisions of the UN Charter, its various other authoritative

prescriptions, and rules of international law.

Continued…

c. Engagement in diplomatic activities and the

acceptance by UN of their participation in international

affairs. UNGA Resolution 3247 in 1974 authorises,

national liberation groups to participate in the sessions

of the General Assembly, conferences, and meetings of

specialised agencies.

Example: active participation of PLO in different

UNGA meetings in the status of observer.

Multinational Corporations

• Multinational corporations do not have any status in international law.

• The arguments are:

a. they are profit-making entities, they are not meant for

participation in maintaining international relations for peace and

security and therefore they should not be the subject of

international law. They are better to be left with self- regulation.

b. they are treated as citizens of the country of incorporation and subject

to the laws of that country.

ICJ in Bercelona Traction case in 1970 gave MNCs the same status as

citizens , defined by their ties to a particular state of incorporation whose law

and jurisdiction are applicable.

Continued…

c. MNCs are regulated by the market forces and there is no

need for artificial control. Artificial regulation may

result in distortion and instability.

• MNCs are treated as the objects of international legal

obligation as they

a. play a major role on the international plane;

b. generate pressures on national authorities and

international bodies; and

c. influence the international decision-making process.

Continued…

• Initiatives for the regulation of MNCs under international law

for MNCs

1. Development of self-regulatory/non-binding instruments

a. OECD Guidelines on Multinational Enterprises 1976

b. UN Norms on the Responsibilities of Transnational Corporations and

other Business Enterprises with Regard to Human Rights,2003

c. ILO Tripartite Declaration of Principles Concerning Multinational

Enterprises and Social Policy,1977 ( Primary Responsibility for state

and secondary responsibility for MNCs)

d. The New International Economic Order ( NIEO): a set of principles

and policies to regulate restrictive trade practice of MNCs

Continued…

• Institutional initiative for regulation of MNCs and international plane

a. UN Commission on Transnational Corporations (established

in 1979, closed in 1993)

b. Commission on International Investment and MNCs ,1995 ( as part of UNCTAD)

c. Sessional Working Group on Working Methods and Activities of MNCs ( set by UN Sub-commission on Human Rights)

d. UN Global Compact ( Ten Principles in the areas of human rights, labour, environment and anti-corruption ) 1999, 2002

Continued…

• Regional bodies such as European Union, European Council

and Organisation of American States

• Way forward

a. Development of normative standards

b. likelihood of creating special status for MNCs in customary

international law

c. Concerted effort for the development regulatory regime with

attribution of legal responsibility

The status of terrorist organizations

• The terrorists organizations do not enjoy any international

legal personality for the simple reason that states are not

willing to grant them any status in international law. States

think they should be tried under domestic criminal system.

• The most important point of argument against their status is

based on jurisprudential contradiction or juridical difficulty. If

responsibility or obligation under international is attributed to

them, they must also have rights in international law.

• The initiative for developing international law to combat

global terrorism has no concern for the status, personality and

competence of terrorists under international law.

Continued…

• Responsibility under international law

State sponsored vs. private terrorism

Article 8: Responsibility of States for Internationally Wrongful Acts of 2001

Decision of ICJ in the Case Concerning the Application of Genocide Convention ( Bosnia and Harzegovina v Serbia and Montenegro)

• Rigid approach: non-attribution of responsibility under international law

• Flexible approach: Instances of financing and safe hourbering.

Conclusion

• The concept of personality is divisible, it can be lost

and acquired.

• Personality can be partial or full.

• Personality of states and others need not be identical,

it can be dissimilar in terms of rights and obligations.

International legal personality

• Determine the status of terrorist organisations in

international law in terms of their legal personality.

Do you think that terrorist organisations should be

attributed legal personality in international law in

order to curb terrorism in wider scale.

About Class Test on 29th March

• 1. Class test 20% on 7-8 March (mandatory for all)

• 2. Starts sharply at the start of your tutorials (ie 11.05/12.05/1.05 etc) with 5 minutes question reading time, ie writing starts sharply at 11.10/12.10 etc

• 3. Late comers will not be given any extra time

• 4 Writing ends sharply at 5 minutes ahead of your tutorial ending time (ie 11.50/12.50), ie total 40 minutes writing test (example 11.10 to 11.50)

• 5. Form: short questions/answers (not essay or hypothetical)

• 6. First 4 sessions (ie up to statehood and recognition inclusive) will be covered.

• 7. Closed book test (no international law book is allowed), but notes are allowed

• 8. Students are required to bring their respective answer papers and pens

• 9. There is no alternative or substitute for this mandatory class test