Chapter 4: International law and Municipal law

Question 1

What does International law primarily deal with?

Answer 1

inter-State relations

Question 2

What does municipal law deal with?

Answer 2

The relationships between individuals and the relationship between an individual and the State

Question 3

What are examples of overlapping issues that apply to International and municipal law?

Answer 3

environment, trade, and human rights

Question 4

What are the two conflicting doctrines that define the relationship between international and municipal law?

Answer 4

Monism and Dualism

Question 5

What is Dualism?

Answer 5

• 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

Question 6

What countries use the dualism doctrine?

Answer 6

UK and the United States

Question 7

What is a significant limitation of the dualism doctrine?

Answer 7

it fails to address the increase in overlapping issues, between, International and municipal law

Question 8

What is Monism?

Answer 8

• 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

Question 9

What countries use monism?

Answer 9

Civil law jurisdictions such as France, Spain, Netherlands and Germany

Question 10

How is international law applied into municipal law in Monism?

Answer 10

• by operation of the constitution and requires no further enabling legislation
• It is “self-executing”

Question 11

How did Hans Kelsen see Monism?

Answer 11

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

Question 12

How did Lauterpracht build onto Kelsens Theory?

Answer 12

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

Question 13

How did Lauterpracht build onto Kelsens Theory?

Answer 13

A unified system would be applied in which international law would sit at the apex and would set the legal conditions

Question 14

How would monism be regarded as as per Lauterprachts theory?

Answer 14

International law

Question 15

How would monism be regarded as as per Lauterprachts theory?

Answer 15

International law

Question 16

How would monism be regarded as as per Lauterprachts theory?

Answer 16

International law has moral content and is claimed to be universal.

Question 17

What is the hybrid theory of Rosseau?

Answer 17

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

Question 18

Whose prerogative is it to choose whether they act under the Monist doctrine or the dualist doctrine?

Answer 18

The states

Question 19

What is meant with “the primacy of international law” in the case of municipal law within international law?

Answer 19

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)

Question 20

What is a strictly regulated exception to this rule?

Answer 20

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.

Question 21

What does it mean when it is said that Internal law must comply with valid international obligations?

Answer 21

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)

Question 22

When does a breach arise that internal law must comply with international obligations?

Answer 22

There must be a specific failure to apply an international law obligation

Question 23

What happens if the State is in failure of adjusting internal law to a international obligation?

Answer 23

The state becomes liable of any breach, even if it was in compliance with the domestic law.

Question 24

How should an international court examine municipal law?

Answer 24

They treat the facts which express the will and constitute the activities of States.

Question 25

How should a international court apply national law?

Answer 25

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

Question 26

What is an exception as to the usual way of how international courts apply national law?

Answer 26

In the Diallo case, it can be seen that in special circumstances may depart from national interpretations if they are manifestly incorrect.

Question 27

In what cases must municipal law mirror the decisions of international law?

Answer 27

- 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.

Question 28

Do countries incorporate customary international law into municipal law?

Answer 28

National systems acknowledge and recognise customary international laws into their municipal legal systems

Question 29

In which cases can it be seen that a common law countries incorporate customary international law into municipal law?

Answer 29

- UK: Trendtex v Central Bank of Nigeria - US: Paquete Habana case

Question 30

What is an exception of the UK to this principle?

Answer 30

The Keyu case held that International law can only influence common law if it is consistent with the constitutional principles of the country

Question 31

How is international law implemented in municipal law in civil law countries?

Answer 31

- 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

Question 32

What are the two methods of treaty implementation?

Answer 32

1. The Incorporation upon ratification into the municipal legal order. 2. The translation of an international law treaty provision into national law by a legislative act.

Question 33

How are treaties incorporated into civil law systems in principle?

Answer 33

Treaties are automatically implemented into internal law, upon the official publication of the treaty into official records but it does not need legislative intervention

Question 34

How are treaties implemented into French legislation in practice?

Answer 34

- 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

Question 35

How are treaties implemented into Spanish legislation in practice?

Answer 35

- Spain: treaties are a part of domestic law as long as they are compatible with the Constitution

Question 36

How are treaties implemented into German legislation in practice?

Answer 36

- Germany: if a treaty regulate political relations or relate to subjects of federal legislation require ratification through federal statute (Bundesrat)

Question 37

How are treaties implemented into Dutch legislation in practice?

Answer 37

- Netherlands: Treaties have supremacy if they are approved by the States General

Question 38

How are treaties applied into internal law of common law countries in practice?

Answer 38

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

Question 39

What are two major cases that explain the incorporation of treaties in the UK

Answer 39

- 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

Question 40

What does the second method of implementation of a treaty into internal law explain?

Answer 40

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.

Question 41

Where does the second method occur and what does it represent?

Answer 41

It mostly occurs in dualist systems and represents a form of domestic control and the need for legislative consent

Question 42

What cases explain the second method the best within the UK?

Answer 42

- 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

Question 43

What are the implications of Brexit upon the applicability of EU law in the UK?

Answer 43

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

Question 44

How are treaties applied in US?

Answer 44

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

Question 45

What case explains the the conditions for a self executing obligation of a treaty within the US?

Answer 45

Sei Fujii v California: a self executing provision of a treaty are those that impose obligatons or create rights upon individuals

Question 46

What does the executive and questions of international law before national courts problem mean?

Answer 46

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.

Question 47

How is the problem of the executive and the national courts on matters of international law solved within France?

Answer 47

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

Question 48

How is the problem of the executive and the national courts on matters of international law solved within the USA?

Answer 48

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.

Question 49

How is the problem of the executive and the national courts on matters of international law solved within the UK?

Answer 49

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.

Question 50

What does the notion of justiciability mean and where do they primarily exist.

Answer 50

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.

Question 51

What are non justifiable matters?

Answer 51

Matters upon which a court can not adjudicate and are usually understood as matters that touch upon sensitive issues of foreign relations?

Question 52

What are some non-justiciable issues in the UK?

Answer 52

the making of war and peace and the disposition of armed forces, the conduct of foreign affairs

Question 53

What effect do non justiciable matters have in the USA?

Answer 53

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

Question 54

When has the 'political question' doctrine been applied?

Answer 54

In relation to political status of a foreign entity, the conduct of foreign affairs, and the conduct of the armed forces

Question 55

What is an exception to the 'political question' doctrine?

Answer 55

Kirkpatrick v Environmental Tectonics: because the validity of a foreign sovereign act wasn't an issue

Question 56

In France, when does a act de government remove the French tribunals competence to adjudicate on an executive act?

Answer 56

1. an acts that influence Frances wishes in international law and only apply to French foreign relations 2. an act that concerns the validity of a French action from the standpoint of foreign policy.

Question 57

What is Germanys stance on judicial deterrence?

Answer 57

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.

Question 58

How does a domestic court give effect to the laws or executive acts of a foreign state that breach international law?

Answer 58

National courts in these cases are asked to check the relevant international provision and determine if the act of another State has been breached

Question 59

What do national courts risk by determining a breach of international law of another State?

Answer 59

They risk destroying foreign relations and embarrassing the executive branch.

Question 60

What does the doctrine of judicial restraint mean within the US?

Answer 60

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

Question 61

What similar doctrine has the UK adopted in sight of judicial restraint?

Answer 61

As seem in the case of Buttes Gas and Oil Co v Hammer courts cannot tule on transactions of foreign States

Question 62

How was the doctrine of judicial restraint challenged in the UK?

Answer 62

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