The relationship between national and international law

Thirdly, when international tribunals settle disputes between two states in accordance with international law, they usually do that by reference to the national law of either party in order to define the concepts in questions. The Nottebohm case stands as an example of that ‘ it is for every sovereign state, to settle by its own legislation the rules relating to acquisition of nationality. As a general rule, states are entitled to exercise diplomatic protection of their nationals, and international law does not impose limitations on the right of a sovereign state to determine who are its nationals. The court emphasized that the issue in the case was whether the grant of nationality by Liechtenstein produced international legal effects, which must be recognized by Guatemala. Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plain in questions of diplomatic protection. The Court upheld the principle of , where the national must prove a meaningful connection to the state in question. In cases like this, international law determines the obligations of the state on the international plane by drawing reference to the national plane as the substantive issue in question involves national law concepts.

Fourthly, national law may serve as evidence of ‘facts’ before international tribunals. It could be an evidence that a state has accepted the applicability of international law to a given state of affairs, as when the Israeli supreme court accepted the Geneva Convention 1949 on the protection of civilians applied in the Palestinian occupied territories (Palestinian Advisory Opinion). National law may be very weighty evidence of state’s compliance with international obligations, and so may be used to prove that the state has not ignored its duties under treaty or customary law as seen in Elettronica Sicula case.

Fifthly, it is not impossible for an international tribunal to be given jurisdiction to decide a dispute solely on national law. An example of this is the Serbian loans case  in which the Court was asked to determine the validity and application of certain loan agreements made between French nationals and the Serbian government Although the court would normally only decide matters which called for the application of international law, its jurisdiction in this case rested on the fact that the dispute was submitted to it by ‘special agreement’ within the terms of the statute. ‘When the international court is called upon to apply national law directly, it will pay the utmost regard to decisions of the municipal courts of a country’ because it is not sensible to adopt an interpretation of that law different from that which applies inside the state itself If, however the correct interpretation of the national law is unclear, the international court ‘will select the interpretation which it considers in conformity with the law’ of that state.

National legal systems differ greatly with regard to the normative rank assigned to international obligations. This will depend on whether the national legal system ‘subscribes to a monist or a dualist interpretation of the relationship between national law and international law”. The difference between the two interpretations lays in that monism views international and national law as part of single legal system, ‘so when someone in  feels his human rights are being violated he can go to a  judge and the judge must apply the law of the . ‘ Dualism conversely, regards international law and domestic law as wholly separate legal systems, the former creating obligations only among the sovereigns and the latter allowing each state to ascertain the means by which it carries out its obligations. This denotes that under a dualist system ‘international law as such can confer no rights recognizable in the municipal courts’.

States typically draw distinctions between obligations arising under treaty and those arising from customary law. Rarely, states deem international obligations superior to their domestic laws (e.g. Germany), but in many most cases international obligations are considered on a par with, and part of, a state's domestic law. In other cases, international obligations are converted into corresponding domestic ones using a specific implemented legislation. Where this chemistry is missing, the state will be bound by the obligation on the international plane, but no rights flow from that obligation to the domestic plane.

It is a long- established principle that a state cannot plead its own law as an excuse for non-compliance with international law as stemmed from Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission in 1949. This has been observed longer before that in 1887 when the Secretary of State Bayard said:  ‘a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.’  

The rebellious United Stated of America stands as an excellent example of a country which has a national law that is often in contrary to international law. Some argue that this is because the USA is truly a nation of laws. However, this is not an excuse. International law cares about the ends achieved regardless of whether the national law obligates or forbids a particular act, what matters is whether is creates a violation for international law. Some other countries’ constitutions say that international law is part of their law, and that in the event of a conflict international law trumps as a matter of municipal law. The USA, doesn’t acknowledge international law as precedental over municipal law and upholds that, the substance of international law is not an issue of fact for the jury, but a matter of law for the court.

 

Even though American law claims being bound to international agreements, there are always some conflicts between the two. In such a case, customary international law is not the supreme law of the land, only treaties are. All what is needed to be done is to interpret customary international law in such a way that creates is no conflict. Treaty law is even more complicated. Even though treaties prevail over inconsistent state laws, the constitution prevails over inconsistent treaties. In cases, where a treaty conflicts with a federal statute, the most recent one prevails. 

 

In the Paquete Habana case, the American courts applied customary international law, but it did not involve law contrary to US law.  No controlling treaty or municipal law existed, and the Supreme Court said that, had a treaty or executive/legislative/judicial law existed, it would have trumped customary international law. This principle is also observed in the case of  Murray v. Schooner Charming Betsy  which held that an act of Congress is never to be construed in a way so as to conflict with international law. When there is a conflict, one must apply the supreme law of the land. There is authority for the President, when there is a true conflict, to apply US law over international law. It’s simply a “political question” for the executive branch. 

When it comes to treaty international law. If the treaty says “the parties agree to …” then it is binding.  If a treaty says “the parties intend to …” then it is not binding. Treaties are not made by Congress, but only by the President with ratification by the Senate.  Nevertheless, those treaties become the law of the land, regardless of what the House of Representatives or the Supreme Court might have said about it.  The only check on this power is where powers are given to Congress. Such treaty provision has to be executed by Congress and they are never self-executing. In the case of Reid v. Covert it was held that If a treaty is contrary to the Constitution, then the treaty fails and the Constitution trumps.  Treaties and executive agreements that have the possibility of violating a constitutional provision will be held as invalid. This means that just because a treaty is agreed-to, that doesn’t automatically make it supreme law of the land. An example of this is the case of Foster & Elam v. Neilson when it was held that a treaty is equivalent to a legislative act whenever it is “self-executing”. However, when the terms are contractual, the parties must execute it, so it requires an act of the legislature.

In the UK on the other hand, giving effect to international law in national courts is often explained in terms of the doctrines of incorporation and transformation. And this is determined by its own national law, usually its ‘constitution’. English law is traditionally a dualist system in which the relationship between international law and national law is regulated by two key principles as seen in the Tin Council case. Firstly, the principle of principle of non-justiciability meaning that English courts cannot generally adjudicate upon or enforce the rights arising out of transactions entered into by states on the plane of international law; and the principle of no direct effect meaning that treaties cannot, without Parliamentary intervention, confer rights on individuals or deprive individuals of rights which they enjoy as a matter of English law. The two principles apply to “unincorporated” treaties. However, careful consideration should be given to the manner and extent to which a domestic statute incorporates the treaty in question. The Belmarsh case shows the implementation of treaties in the UK. The ruling was commented on by Lord Steyn by saying that "the Belmarsh decision came against the public fear whipped up by the governments of the United States and the United Kingdom since September 11 2001 and their determination to bend established international law to their will and to undermine its essential structures."

On the other hand, a rule of customary international law is part of English law once it is shown to exist as a matter of international law as seen in the case of R vJones in which it was held by Lord Bingham that ‘a crime recognised in customary international law may be assimilated into the domestic criminal law of this country’, however, the authorities as he reads them do not support the proposition of automatic assimilation.

The aforementioned shows that even though the opportunity is given on a plate of gold for the national courts to contribute to the development and evolvement of international law through the dynamic interaction via the judicial decisions, however judges ‘ are often surprised at this, and feel ill equipped for the task’  as Higgins suggests. In an absence of express normative hierarchy, judges ‘steer clear of ‘nationalist’ approach’ while using ambiguous methods when dealing with the relationship between national law and international law in a manner that is continuously abandoning ‘the monism-dualism debate, making a move to pragmatism.’ . The legal world is moving towards serving the national interest by mixing law with politics and power. It is ultimately a game of power and sovereignty and it is this dynamic of state sovereignties and its evolving nature that underlies the development of international law.

Bibliography;

Conferti, B. Provost, R (1993) International Law and the Role of Domestic Legal Systems, Martinus Nijhoff Publishers.

Evans, M (2006). International Law, Oxford University Press.

G.J. Wiarda, in  (1992) , International Law in a Divided World, Clarendon Press,

Higgins, R. (1994)Problems and Process: International Law and How We Use It, Oxford University Press.

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Kelsen, H. Knight, M (2002), Pure Theory of Law. The Lawbook Exchange.

McGoldrick, D. Rowe, P. Donnelly, E. (2004) The Permanent International Criminal Court: Legal and Policy Issues. Hart Publishing.

Ward N. Ferdinandusse (2006) Direct Application of International Criminal Law in National Courts: By, By Ward N. Ferdinandusse, Published by Cambridge University Press.

Williams, G. Charlesworth, H ( 2005), The Fluid State: International Law and National Legal Systems, The Federation Press.

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