1
LAWS5005
Public International Law Week 1
INTRODUCTION TO INTERNATIONAL LAW
International law is a binding regime of principles and rules that regulates the relations among
states, and individuals and other non-state entities.
The entities with the capacity in international law are states, international or intergovernmental
organisations, trans-national corporations, individuals, non-government organisations (NGOs)
Treaties are the major source of international law
Intl law is expanding in its reach
United Nations Charter Article 2(1):
Based upon the principle of the sovereign equality of all its members (all states have equal rights
and duties)
This mean that no state:
- May compel another to submit to judicial settlement of a dispute between them
- Is bound by a new international rule unless that state has consented to it
What is international law?
“The Law of Nations or International Law…is the name for the body of customary and
conventional rules which are considered legally binding by civilised States in their intercourse
with each other” (Oppenheim, 1905)
“International law comprises a system of rules and principles that govern the international
relations between sovereign states and other institutional subjects of international law” (Dixon,
2007)
How, where and why international law developed
3000 BC
Medieval Europe
15th and 16th centuries
- Rise of the nation state: some powerful states emerged (Spain, Portugal, England, France,
Netherlands, Sweden) in which internal authority became more centralised; especially in
northern Europe where Protestant revolution most influential, these states refused to
accept political authority of entities beyond themselves
16th and 17th centuries
2
- Modern IL emerged from turmoil of Europe’s religious wars of 16th and 17th centuries
Peace of Westphalia 1648
- Recognised a legal system of independent states not subject to a superior authority
- Treaties established rights of numerous small states to participate directly in international
system with only symbolic concessions to pre-modern order represented chiefly by Holy
Roman Empire
- Confirmed modern state system of independent sovereign states
19th century
- European states consolidated after Napoleonic Wars and Congress of Vienna 1815
- European balance of power also reinforced notion that IL was for European, Christian and
“civilised” states
- This was spread by European colonisation and thence to former colonies on independence
esp. in the Americas
- Unprecedented growth in negotiation of treaties, evolution of customary law and
publication of scholarly works on IL
- IL adopted a laissez faire approach to state behaviour
- States began to develop rules to regulate behaviour between each other; rules about
maritime conduct, trade and warfare
- Scope of IL broadened beyond war and peace to international cooperation in a range of
commercial and technical areas
Communications
Intellectual property
Customs
20th century
- Permanent Court of Arbitration 1899/1907
- 1919 Treaty of Versailles; League of Nations
ToV established peace after WWI
LoN a huge step forward for intl community; not open to all states but was open to
all winners of WWI and later the losers of WWII
One chapter of ToV established the Intl Labour Organisation (ILO) to improve rights
of workers around the world
Another chapter est. Permanent Court of International Justice 1921
LoN lacked power due to absence of US membership – US opposed to premise of
‘collective security’
- 1945 United Nations
A forum to which every state belongs; in which member states can draw up treaties
to deal with particular matters
UN Charter highly significant
- ICJ and other intl courts and tribunals
3
Produce judgments and advisory opinions that contribute to the body of intl law
- Many more multilateral treaties
More customary intl law (states behaving in a certain way over time which develops
into a form of obligation)
- Expansion of IL to cover individuals, IOs
Theories – is IL really “law”?
Natural law
- St Thomas Aquinas: rules of natural law are discoverable through human intelligence or
reasoning, and that reason enables man to order life according to the divine will or
objectively correct moral principles
- IL is more a “positive morality” than law because it fails the enforcement test (John Austin)
Positive law
- Laws are based on objective, ascertainable, scientific facts
- Law as a creation of power; a command of a sovereign enforced by a sanction
- Whereas natural law is said to exist above states, positivism says IL exists between (not
above) states and depends on their consent, not necessarily subject to considerations of
ethics or morality
- Less concern with what states ought to do and more with what they actually do
- IL has primary rules but no secondary rules i.e. there are obligations but no mechanism for
change or enforcement. He also notes that there is no single and/or definitive source of IL
law (HLA Hart)
Natural law gave way to the positive approach in the 19th century
Consent theory
- By consenting to it, states show that they accept intl law as law
- Problems:
It is generally accepted that any new state is automatically bound by existing
customary intl law – how does the consent theory explain this?
Certain treaties regarding as binding all states, even those not party to them
Reciprocal entitlement theory
- If one state does wrong to another, the other state can withdraw benefit/impose a penalty
in their dealings with each other
- Form of enforceability
No single, satisfactory general theory
Summary:
4
IL lacks the mechanisms of domestic law:
- No legislature – no democratic election of a law-making body
- No compulsory court jurisdiction
- New laws aren’t binding without state consent
- No police force
- Horizontal rather than hierarchical (principle of equality between states)
States generally comply because it is mutually advantageous to do so which creates
international stability (i.e. reciprocal relationship between states)
- “International law is sanctioned by habit, interest, conscience and force” (Wright, 1925)
No system of punishment like in domestic legal systems; however, there are ways in which
different states enforce their rights - e.g. ‘countermeasures’
Public perception of IL is generally shaped by the few (but very dramatic) occasions when it is
flagrantly broken/disrupted
Even when IL is broken States generally try to argue they were complying with IL - e.g. the US
justifying the invasion of Iraq by using justification of old Security Council resolution
- this supports the notion that intl law is in fact binding
INTRODUCTION TO THE UNITED NATIONS
UN formed in 1945 w/ only 50 countries
UN Charter a treaty that is binding on all members
Purposes and principal features of the United Nations system
Art 1 UN Charter:
1. To maintain intl peace and security
2. To develop friendly relations among nations
3. To cooperate in solving intl problems and in promoting respect for human rights
4. To be a centre for harmonising the actions of nations in the attainment of these common
ends
Principal organs:
- General Assembly
Main deliberative organ
Member States are equally represented, with one vote each
Members have to be voted in by GA and SC
Pronouncements on matters relating to international peace and security, human
rights, admitting new members, UN budget, peacekeeping budget – decided by
2/3rds majority
5
Other matters decided by simple majority
Resolutions not binding
- Security Council
Primary responsibility is to maintain international peace and security (Art 24)
Presidency held in turn by members in alphabetical order of their names; each
president holds office for one month
Adopts resolutions; legally binding
Art 25 UN Charter: all substantive decisions of SC are binding on members
Permanent members (UK, US, China, France, Russia) have veto powers
However an abstention won’t block a SC resolution if the requisite majority
support exists
10 permanent members; each non-permanent member has a two-year term
Voting arrangements: Art 27
Other organs of the UN can make recommendations to govts, but SC alone has the
power to make decisions which member states are obligated under the Charter to
carry out
Art 103: in the event of a conflict b/w the obligations of the members of the UN
under the Charter and other obligations, obligations under UN Charter prevail
- Economic and Social Council
- Trusteeship Council
Est. to provide intl supervision for 11 Trust Territories administered by 7 member
states, and to ensure that adequate steps were taken to prepare the Territories for
self-govt or independence
- Secretariat
Carries out substantive and administrative work of the UN as directed by the GA, the
SC and other organs
Headed by Secretary-General
- International Court of Justice
Principle judicial organ of UN; est. in 1945 by Charter
Seat of the Court is in the Hague
Role is to settle legal disputes submitted to it by States and to give advisory opinions
on legal questions referred to it by authorised UN organs and specialised agencies
Only hears disputes where states have actually consented
Composed of 15 judges (P5 always provide judges)
Intl Criminal tribunal for the Former Yugoslavia (ICTY) and Intl Criminal Tribunal for
Rwanda (ICTR) created as subsidiary bodies of SC with judicial functions
International Law Commission
- Not part of the UN but creation was provided for in UN Charter
6
- Object of “the promotion of the progressive development of intl law and its codification”
- 34 independent experts serving in individual capacity but nominated for election by their
state
7
SOURCES OF INTERNATIONAL LAW
Art 38(1) ICJ Statute:
The Court…shall apply:
(a) International conventions, whether general or particular, establishing rules expressly
recognised by the contesting states [i.e. treaties]
VCLT Art 2 treaty definition:
an intentional agreement
between states (or between a state and an intl organisation, or between
IOs)
in writing
governed by intl law
whatever its particular designation
(treaty/agreement/covenant/convention/protocol/charter)
Once in force for the parties, a treaty is legally binding on the parties and any breach
will be a violation of intl law
Binds only those states that are parties to the treaty
cf: customary intl law, which binds all states
Treaties are a source of obligation and not a source of rules of general application
May be reflective of or come to embody customary intl law
The content of a treaty obligation depends on the interpretation of the treaty; a
process governed by intl law
(b) International custom, as evidence of a general practice accepted as law [i.e. customary
international law]
Oppenheim, 1905:
Customary rules grew up by common, tacit consent of states
States dealing with each other needed some rules of intl conduct
Single usages became habitual, then obligatory
Gradually turned into custom over time as a feeling of legal requirement
grew up
“constant and uniform usage, accepted as law” (Colombia v Peru (Asylum Case))
Colombia v Peru (Asylum case) (1950)
Facts:
8
- Argument was whether there was a CIL rule permitting a state granting
asylum (Colombia) the sole right to characterise the asylee’s offence as
political
Issue:
- Whether there was a customary intl legal rule of diplomatic asylum
- Was it the right of Colombia to determine the nature of the offence and
grant diplomatic asylum
Held:
- Peru failed to est. that there was a customary rule of diplomatic asylum
- Colombia in breach of a treaty re diplomatic asylum
Reasoning:
- No customary rule because insufficient evidence of States abiding by this
practice out of a subjective belief that they had to because of a feeling of
legal obligation
- Other Latin American states’ practice not consistent with Colombia’s
practice
- Peru not bound by state practice anyway as it had also refrained from being
part of the relevant treaty
International custom = state practice plus opinio juris
State practice:
Material, objective element – repeated acts by state
Treaties, decisions of intl and national courts, national
legislation, diplomatic correspondence, opinions of national
legal advisers, and the practice of intl organisations (ILC’s
non-exhaustive list, 1950)
Policy statements, press releases, official manuals on legal
questions, executive decisions and practices, orders to naval
forces, comments by govts on ILC drafts (Brownlie)
ILC’s “Identification of customary law” – Draft conclusion 7
Forms of practice
1. Practice may take a wide range of forms. It includes both physical and
verbal actions.
2. Manifestations of practice include, among others, the conduct of States
“on the ground”, diplomatic acts and correspondence, legislative acts,
judgments of national courts, official publications in the field of intl law,
statements on behalf of states concerning codification efforts, practice
9
in connection with treaties and acts in connection with resolutions of
organs of IOs and conferences
3. Inaction may also serve as practice
4. The acts (including inaction) of IOs may also serve as practice
There is no precise length of time during which a practice must
exist; it simply must be followed long enough to show that the other
requirements of a custom are met (North Sea Continental Shelf
cases)
A practice does not have to be followed by all states for it to be the
basis of a general custom, and the practice of states with a
particular interest in the subject matter is the most relevant (North
Sea cases)
Opinio juris sive necessitas = accepted as law
Subjective, psychological element – a state’s belief that it is obliged
by law to act in a particular way, as distinct from comity or friendly
relations
Requirements (North Sea cases):
1. The acts concerned must amount to a settled practice
2. The acts must be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it
Intl customary law consists of a wide range of subject matter, e.g.
Duty not to intervene in internal affairs of another state
Immunity of heads of state and certain senior ministers from the jurisdiction
of foreign courts
The prohibition of torture
Various rules re interpretation of treaties, e.g.
Art 28 VCLT: a treaty does not bind a state re any act or fact before
the treaty came into force for that state
Art 27 VCLT: can’t use domestic law to interpret a treaty
Onus lies on the state arguing for the existence of a custom
Asylum case - Colombia
cf Nuclear Weapons advisory opinion (1996)
Could not find sufficient state practice + opinio juris that the use of
nuclear weapons would always be lawful or unlawful
Custom can be universal, local or regional
10
Asylum case
Right of Passage casoe (Portugal v India) 1960
“constant and uniform practice…accepted as law by the parties as
to free passage between Portuguese enclaves”
Costa Rica v Nicaragua 2009 (fishing rights)
‘Persistent objector’ = a state may exempt itself from the application of a new
customary rule by persistent objection during the norm’s formation (unless jus
cogens)
E.g. Anglo-Norwegian Fisheries case
UK failed to protest at Norwegian use of straight baselines
Norway consistently objected to any limit on the length of such
baselines
Evidence of objection must be clear, and there is a rebuttable presumption
of acceptance
Must oppose rule from the earliest possible time, and opposition must be
consistent
Persistent objector rule reinforces the principle of state consent in the
creation of custom
‘Subsequent objector’?
Deviate from a customary rule and violate IL
But if lots of states deviate, the rule changes
(c) General principles of law recognised by civilised nations
IL may adopt certain principles from municipal law (if used by enough legal systems
around the world)
e.g. rules of procedure, good faith, res judicata [an issue decided by a court
may not be reopened], ex injuria jus non oritur [no benefit can be received
from an illegal act], unjust enrichment, estoppel, English law principle of
interpretation expressio unius est exclusio alterius [to refer expressly to one is
to exclude others]
Chorzow Factory case 1927 [the right to receive compensation – now applies
where a state has wronged another]
Intl tribunals choose, edit and adapt these elements from other developed systems;
the result is a body of intl law the content of which has been influenced by domestic
law but which is still its own creation
Equity (principles of fairness) as part of the intl system
Diversion of Water from the Meuse case (Netherlands v Belgium) (1937),
opinion of Judge Hudson
11
see also Art 38(2) ICJ statute – if the parties agree, they can ask the court to
decide a case not on the basis of law, but on the basis of ex aequo et bono
(equity and fairness)
(d) Judicial decisions [municipal and international] and the teachings of the most highly
qualified publicists [academic writings]…as subsidiary means for the determination of rules
of law
Judicial decisions can be decisions of ICJ, other intl courts and tribunals, domestic
courts, arbitral tribunals
Art 59 ICJ Statute: decisions of the ICJ have no binding force except between
the parties and in respect of that particular case
No strict doctrine of precedent, but the ICJ strives to follow its own jurisprudence
and maintain judicial consistency; employs the technique of distinguishing previous
decisions
Note ICJ statute Art 59, but there are many examples of ICJ developing new rules of
IL:
Reparation case 1949: UN has international legal personality
Reservations case 1950: rules on reservations to multilateral treaties
Nuclear Tests case 1974: effect of a unilateral act (can be binding on other
states)
Anglo-Norwegian Fisheries case 1951: drawing of straight baselines
Nottebohm case 1955: principle of real and effective nationality
“Teachings of the most highly qualified publicists”
No hierarchy between (a) and (c), but (d) is intended as ‘subsidiary means’
Cases:
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) 2012 (ICJ)
Principle:
- “…State practice of particular significance is to be found in the judgment of national
courts faced with the question whether a foreign state is immune, the legislation of
those states which have enacted statues dealing with immunity, the claims to immunity
advanced by States before foreign courts and the statements made by States…”
- “Opinio juris in this context is reflected in particular in the assertion by States claiming
immunity that international law according them a right to such immunity from the
jurisdiction of other states; in the acknowledgement, by States granting immunity, that
intl law imposes upon them an obligation to do so; and conversely, in the assertion by
states in other cases of a right to exercise jurisdiction over foreign States”
12
SS Lotus Case
Facts:
- Collision between French and Turkish ships; both captains arrested for manslaughter
- France argued Turkey had no right to exercise criminal jurisdiction over a French national
Held:
- State practice + opinio juris had to be shown to the extent that it would demonstrate that
a state could not charge a foreign national in relation to an offence that occurred on the
high seas and outside their jurisdiction
*North Sea Continental Shelf cases
Principle(s):
A rule in a treaty can also be or become part of a custom:
1. It may be declaratory of [a pre-existing] custom at the time that provision is
adopted
2. It may crystallise custom as states agree on provision during treaty drafting process
3. It may come to be accepted and followed by states as custom in their practice after
treaty’s adoption
For a treaty provision to be or become CIL:
1. Treaty provision must be of a fundamentally norm-creating character
2. Must be widespread and representative participation in the treaty
3. Passage of short period of time not necessarily a bar
4. But in that time state practice should have been extensive and virtually uniform
5. Must be general recognition of a rule/legal obligation
Facts:
Dispute over equidistance principle of drawing maritime boundaries/claims over
continental shelf
Denmark and the Netherlands sought to invoke against Germany a customary rule
identical to art(2) Geneva Convention on the Continental Shelf (i.e. principle of
equidistance)
Germany was not a party to the Convention (had signed but not yet ratified it)
Issue:
Whether a treaty rule was binding as custom upon a non-party to the treaty
Held:
Treaty and CIL can coexist; rule of CIL (born out of state practice + opinio juris) may
develop after treaty is concluded
While there may have been evidence of state practice in the form of a number of states
being party to the treaty, it still appears that the equidistance principle not a custom
because of insufficient evidence of opinio juris - that states drew boundaries according
13
to this principle because they felt legally compelled to draw them in this way by reason
of a rule of customary law obliging them to do so
Furthermore, the fact that treaty was subject to reservations undermine its propensity
to be ‘fundamentally norm-creating’
Dissenting opinion from Judge Tanaka:
Significance of ratifications/practice varies – e.g. large maritime state v small land-
locked state
Ascertaining opinio juris from external existence of custom
Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)
Issue:
- Costa Rican subsistence fishing right: time + lack of protest by Nicaragua = customary
right
Military and Paramilitary Activities (Nicaragua v USA) (1986)
Principle(s):
Customary rule can co-exist with treaty rule
No need for ‘absolute rigorous conformity’ of state practice
But there is a need for conduct generally consistent with the rule
Facts:
Nicaragua claimed that US had used armed forced and intervened in its affairs contrary
to intl law prohibiting the use of force
US argued that the use of force prohibition is a treaty provision, to which states must
consent. The US had consented with reservations – with the effect that the US was
excluded from disputes arising from a multilateral treaty (which the UN Charter is)
Issue:
Whether customary rules applied in relations between two states when rules covering
the same ground also existed in treaties to which those states were parties
Held:
Court affirmed Nicaragua’s argument that treaty does not displace customary law
Some issues
How does new CIL evolve?
- De lege ferenda – the law as it should be, not the law as it is now
- If multiple states decide a rule it is not satisfactory, their practice which is contrary to the
rule will initially be a violation of IL, but if it is acquiesced to by other states, it becomes a
new rule of CIL
14
Inconsistency between treaty and custom, or two rules from the same source?
- Apply sensible rules of interpretation that apply to ML as well as IL
- If there were two conflicting rules of CIL, common sense approach also applies – and the
more recent rule will displace the earlier
- But in theory, there is no hierarchy of rules of IL
The role of UNGA (United Nations General Assembly) resolutions:
- There have been major resolutions relating to the prohibition on the use of force
- Resolutions can have binding effect – e.g. Namibia advisory opinion (1971)
UNGA’s resolution effectively terminated the apartheid mandate in Namibia
- But generally not legally binding (unlike UNSC resolutions)
- (Voting; speeches) accepted as evidence of state practice and opinio juris either of existing
CIL or contributing to its formation – e.g. in Nicaragua case 1986, Nuclear Weapons opinion
1996
Nicaragua case: US’ use of force/wrongful intervention in Nicaragua court looked
to resolutions passed in 1970s and 80s elaborating what constitutes an unlawful use
of force (e.g. supporting rebel forces); relied on those resolutions as est. state
practice and opinio juris
Nuclear Weapons opinion: the court also looked to UNGA resolutions for evidence
of state practice and opinio juris
- Some argue they can create “instant customary law”
e.g. rules re outer space developed in the mid-20th century
Most agree there is no such thing as instant CIL
- Considerations apply to UNGA and any other IO of universal membership
- See also ILA Report 2000, pp. 54-66 – view on UNGA resolutions
What is “soft law”?
1. Written instruments that spell out rules of conduct that are not intended to be legally binding
(e.g. UNGA resolutions), OR
- A misnomer – not law, but can elaborate on the meaning of a rule of IL
2. Binding but vaguely worded or inchoate instruments (e.g. World Heritage Convention 1972)
Note: they are not subject to the law of treaties and do not generate the opinio juris required for
them to be state practice contributing to custom
International Law Commission (ILC) work
Codification and progressive development of IL (UN Charter Art 13)
Suggests how ILC law should develop
No formal legal binding effect, but their work is highly influential because of:
15
1. The standing of those who comprise the ILC (independently elected and acting in an
individual capacity)
2. Their method of work (they survey state practice in great detail)
3. Their articles are drafted as if they are to become treaties, and the intl community then
decides what to do with them; those draft articles are still of great influence even if they
are not given formal status
Jus cogens
Peremptory norms proscribing conduct that is fundamentally unacceptable to the intl community
- “Peremptory norms of IL from which no derogation is permitted”; “a body of supreme or
‘constitutional’ principles” – Cassese
- Concept born out of developing nations’ desire not to be bound by treaties that
contradicted fundamental rules of IL
- These norms trump any ‘sources’ of IL (treaties, CIL etc.)
Concept is of long standing – e.g. Oppenheim 1905 noted that “immoral” or “illegal” obligations
could not be the object of a treaty:
- Immoral (e.g. to attack a third state without provocation) – such treaties were not binding
- Illegal (e.g. to commit piracy) – [“obligations … at variance with universally recognised
principles of IL”] – treaty would be “null and void”
But term itself originated in treaty law, during negotiations for the 1969 VCLT: ‘a treaty provision
that violates a jus cogens norm is void’
No definition/agreed list, but includes e.g. prohibitions of aggression (use or threat of force),
slavery, genocide, apartheid, torture, piracy and the right to self-determination (only positive
peremptory norm)
- Persistent objectors cannot oppose peremptory norms
- If a CIL competes with a peremptory norm, it cannot apply
What is the effect of a jus cogens norm being violated?
- Under the rules of state responsibility, other states under a duty not to recognise the
violation
Unilateral acts
Unilateral acts can bind a state – a certain individual can bind a state simply by an individual act:
- Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ Rep Ser A/B No. 53
Status of a declaration given by the Minister of Foreign Affairs
16
Foreign Minister of Norway, in the context of post WWII negotiations over territory,
said to the Danish representative that Norway would not try to claim Eastern
Greenland, but later they did
ICJ stated that Norway was bound by this promise
- Nuclear Test cases (Aust/NZ v France) [1974] ICJ Reps 253
Aus and NZ complained about France’s testing of nuclear weapons near their
territory
Declaration by French President that there would be no more atmospheric nuclear
test - was there an intention to give a legal undertaking when the statement was
being made?
Court understood this as binding France, but the case was moot
- Armed Activities (New Application: 2002) (DRC v Rwanda) [2006]
Counsel for Rwanda; statement of intention to withdraw reservations
- Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v
Senegal), ICJ
Belgium had heard rumours that Senegal was going to release Chad’s dictator; went
to court to get urgent order that Senegal must keep him in custody
Counsel for Senegal said they would not release him; Court considered this
statement binding on the state
- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-
Leste v. Australia) (March 2014)
- ILC Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating
Legal Obligations (2006)
17
Week 2
THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC
LAW
Effect of municipal law (ML) on IL
- State practice (Art 38(1)(b) ICJ Statute) and general principles (Art 38(1)(c))
Monism and dualism
Monism = only 1 legal system to which both PIL and ML are a party
- IL applies automatically in domestic legal order; prevails over inconsistent ML (e.g. intl
human rights law says no person may be imprisoned without trial and ML says otherwise)
- In practice, monism means that state should ensure national rights and obligations conform
to IL and if they do not, IL should prevail
- Many European jurisdictions (e.g. the Netherlands) approach treaty law and customary IL
from a monist perspective – treaties are given direct effect; are supreme over domestic law
New states or new Constitutions often provide for how IL is to be incorporated
Dualism = PIL has no direct impact on ML and must be implemented through executive order /
legislation / judicial decision
- Il and national legal systems distinct and independent
IL = collective will of sovereign/states; ML = will of sovereign/state
IL law is b/w states, national law is within states
- IL cannot invalidate ML and vice versa
- IL not automatically part of ML; to apply domestically, IL must be adopted or transformed
into ML
Effect is that govt may be acting lawfully within its own territory even though in
breach of intl obligations (e.g. violating HR obligations)
- Australia = a dualist State following the transformation doctrine re treaties and probably
also re customary international law
A third way?
- Separate systems of law
- Similar to dualist theory in effect by less theoretical
- IL and ML deal with different subject matter (cf monism and dualism which say IL and ML
deal with the same subject matter)
- IL and ML do not operate in the same sphere
- IL and ML are separate systems of law, so never contradict each other
18
- Any conflict (e.g. IL says no person may be imprisoned without trial and national law says
otherwise) is resolved like any conflict of laws by the rules of the particular court
Doctrines of incorporation and transformation
More relevant in practice is which approach is followed in ML – incorporation or transformation
The doctrines of incorporation and transformation determine whether – and if so, how –
national courts will apply IL in any given case
- Incorporation: rules of IL automatically a part of ML w/o need for express adoption by local
courts or legislature
‘hard’ variant = courts to apply PIL unless inconsistent with statute or common law
‘soft’ variant = courts to apply PIL unless inconsistent with statute only (i.e. prevails
over common law)
- Transformation: IL must be transformed into ML by being expressly adopted by the local
courts; IL not ipso facto part of ML and requires deliberate act by the state
‘hard’ variant = only legislation may transform
‘soft’ variant = either legislation or judgments can transform
Some correlation b/w theories of monism and dualism and doctrines of incorporation and
transformation, but not always
- e.g. UK case is a dualist state but follows an incorporation approach to CIL
And practice not always consistent
- R v Jones (UK): intl crime of aggression not automatically a crime in UK law even though
incorporation theory accepted in principle
Often a distinction b/w custom and treaty rules
- UK and Aus follow transformation approach to treaties
The contents of the treaties have to be implemented in ML by legislation
- UK (generally) follows incorporation approach to customary rules
- Aus (probably) follows transformation approach to customary rules (e.g. Nulyarimma v
Thompson) but ‘soft’ transformation approach not clearly endorsed
Trendtex Trading Corp v Central Bank of Nigeria [1977] – UK position
Principle:
- Incorporation approach accepted; i.e. custom can form part of domestic law
Facts:
- P = Trendtex, Swiss company selling cement to English company with which D had
contracted; D = Central Bank of Nigeria
19
- P claimed against D for payments due in respect of the Bank’s breaches and repudiation
of letters of credit
Issue:
- Whether Nigeria has immunity before UK courts
- Whether doctrine of precedent applied to CL rules which incorporated PIL rules, so that if
there were a change in PIL, it could only be recognised by courts as part of CL w/in the
limits of stare decisis.
Majority held:
- Lord Denning strayed from his previous decision and ‘transformation approach’ in Thakar
to the ‘incorporation approach’
- Under the incorporation approach, domestic law changes as the rules of international law
change
- Shaw LJ and Denning: exception to the doctrine of stare decisis = Court could apply new
rule of PIL even if it were to the contrary of the old rule used in an earlier decision. Stare
decisis did not apply.
Chow Hung Ching v R (Aus)
Principle:
- Rejects incorporation approach
Facts:
- 2 Chinese who assaulted/detained a local in PNG. Appeal against the convictions on the
grounds that Supreme Court of PNG didn’t have jurisdiction to try the charges because
the offences were committed by members of an armed force of a friendly foreign power
admitted to PNG w/ consent of Cth and under govt. of Cth.
Issue:
- The extent of immunity in the case of visiting armed forces
Latham CJ:
- [17] legislation provides that authorities of vising forces should have jurisdiction over
their members in relation to discipline/internal administration but nevertheless local
jurisdiction should be preserved of local courts
- Concluded that accused were not members of armed force of China, ergo, objections to
the jurisdiction of the court should not be sustained
- [13] Int. law is not a part of the law of Aus; but a universally recognised principle of int.
law would be applied by our courts
Dixon J:
- Principle of immunity from local jurisdiction asserted in favour of members of a foreign
military force; bring their own military law = said to form part of the law of nations
- In Australia, ‘the law of nations (in regard to questions of jurisdiction) is adopted by the CL
and is held to be a law of the land.’
20
- The theory of Blackstone (automatic incorporation) is ‘regarded as without foundation’
and the ‘true view’ is that of Brierly ‘that international law is not part, but is one of the
sources’ of Australian law.
- Immunity of foreign armed forces held to be part of common law
Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014]
Facts:
- Bikie consorting case – two of the Ps pleaded that the state law contravened the ICCPR
rights of freedom of association
Results:
- Four justices dismissed claim
- French CJ: Aus is a dualist state; ICCPR has no effect as it has not been implemented
Influence of international law on Australian law
Treaties clearly not part of ML unless implemented by domestic legislation: Teoh (1995)
- NB: implementation = making IL obligation part of ML; ratification = binds the state to
comply w/ treaty
But legislation must be interpreted as far as possible so as to conform with IL: Polites (1945)
IL can influence the development of the common law: Mabo (1992)
Customary international law
- Does not automatically form part of domestic law, but may have an indirect effect e.g. by
influencing the development of the common law, and through statutory interpretation
Statutory interpretation
- In the absence of express words to the contrary, legislation should be interpreted subject to
Australia’s international legal obligations
- Courts will not impute to the legislature an intention to abrogate or curtail fundamental
rights or freedoms unless intention clearly manifested by unmistakable and unambiguous
language
- Principle of statutory interpretation that: “every statute is to be so interpreted and applied,
so far as its language admits, as not to be inconsistent with the comity of nations or with the
established rules of international law” - Latham CJ in Polites
- This is in part because : “There is a presumption that the legislature does not intend to
violate by a statute any established rule of international law” – McTiernan J in Polites
- Where a rule of IL arises through a treaty to which Aus is a party, rather than a rule of CIL,
position not clear
21
Chu Keng Lim v Minister for Immigration:
“courts should, in a case of ambiguity, favour a construction of a
Commonwealth statute which accords with the obligations of Australia
under an international treaty” [i.e. same as a rule of CIL] - Brennan, Deane
and Dawson JJ
Teoh:
BUT subsequently clarified as being limited, probably, to cases where “the
legislation is enacted after, or in contemplation of [Australia becoming party
to] the relevant [treaty]” - Mason CJ and Deane J
Constitutional interpretation
- Debate as to whether same approach to statutory interpretation applies to the Constitution
Coleman v Power
Facts:
- P a public speaker; argued his right of free speech had been infringed when he had been
charged with using offensive language
Results/reasoning:
- Kirby J:
“the principle of statutory construction that where words of a statute are
susceptible to an interpretation that is consistent with international law, that
construction should prevail over one that is not” [240]
- Gleeson CJ:
Acknowledged the principle that courts should, in a case of ambiguity, favour a
construction of a Commonwealth statute which accords with the obligations of
Australia under an international treaty, but implicitly agreed with those
formulations that confined it to:
Legislation enacted after the treaty was entered into, or
Legislation enacted in contemplation of Australia becoming a party to the
treaty, or more narrowly
Legislation intending to give effect to the treaty
- Gleeson CJ rejected the suggestion that the 1966 ICCPR (in force for Australia 1980) could
influence the interpretation of a 1931 statute – particularly a State statute
- Kirby J replied that:
“The suggestion that the meaning of the Act in question here is forever governed
by the ‘intention’ of the legislators who sat in the Queensland Parliament in 1931
is not one that I would accept.” [245]
i.e. statute should be read and interpreted as of today, not 1931: “This Court
must keep pace with such changes in doctrine, not rest on its legal laurels” [249]