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The relationship between municipal and international law has been a constant subject of debates since a long time. The distinctions and autonomy between the two, along with the impact of international rules on the body of law are some of the questions which give rise to this debate (Ravi, 2017). The difficulty in addressing these issues stems from the fact that there is a difference in the backgrounds of both international and municipal law. And even though this relationship is a complex one, it is still very crucial (Thompson, 2015).
The main point of debate between the two systems lies around the questions of standing of the international law before the domestic courts and the application of same; and regarding the stand of the municipal or domestic law before the international tribunals or courts (Abass, 2014). The following parts analyze these very points to determine the relationship between international and municipal law. In doing so, the applicable theories and case laws would be used, to demonstrate the point stated. The discussion would also highlight the manner in which the international law has been applied by the courts in UK, towards its domestic proceedings.
The issues which have been highlighted through the relationship between municipal and international law can be solved through the use of theories applicable on them. For this purpose, there are two key theories, which are equally dominant and yet opposing to each other. These theories make an attempt to address the question of which one of these two ranks higher on superiority between the international and municipal law (Dixon, McCorquodale and Williams, 2016).
The international law in principle operates internationally only and not between the domestic legal system, which is a perspective in line with the theory of positivism and recognizes the two laws as independent and distinctive systems (UN Enable, 2017). On the other hand, the proponents of natural law maintain that these two laws are a single legal system and this approach is referred as monism. As per the monists, this system arises out of a hierarchical, formulaic approach which posts the existence of a single fundamental norm, which underpins both the laws. Either that view, or the view that it arises out of unified ethical approach, the emphasis of which is on universal human rights (Rothwell, Kaye and Akhtarkhavari, 2014).
The theory of monism believes that the municipal and international laws are the components of a unified system. These two operate over the same subject matter and concurrently in the same sphere. And due to this view, there is an inevitability of a conflict between the two. And in case of such a conflict, the international law always prevails (Boczek, 2005). This can be demonstrated through an example put forward by Martin Dixon. As per the international human rights law, an individual cannot be sentenced until he has got a chance of a fair trial. This very notion has been adopted by the domestic laws and even where it stipulate otherwise, the same has to be amended to be in conformity with the international law (Dixon, 2013).
Even within this theory, the views are differentiated for the superiority of the international law. For Hans Kelen, the theory is a monist-positivist one, where the law is derived from the validity from the fundamental or the basic principles (Björgvinsson, 2015). On the other hand, Judge Hersch Lauterpacht believes that the state is a collection of individuals and the national law cannot be relied to protect the liberty of the individuals. And as the international law can guarantee the same, it is a superior one (Lauterpacht, 2012).
There is another view regarding this theory, which is known as monist-naturalist. As per this view both the laws are subjected to a higher legal order, which is the natural law. This is because the positive or the man-made law is derived from the natural law (Rubin, 2007). So, the hierarchical chart is somewhat like this:
Unlike monism, the theory of dualism regards the two laws as a dual legal system and they both operate concurrently with respect to the obligations and rights. In the view of Treipel, the relationship between the states is regulated through the international law and the rights and obligations of the people in the state are regulated through the domestic law. Hence, if some right of a person is denied which has been guaranteed by the international law in a national court, then such court would apply the municipal or the domestic law. This breaches the commitment of the state under the international law, though the same is a matter for an international court (Cali, 2015).
In simplified terms, something can be totally legal under its internal law, though the same could violate an international law. This is the reason why the domestic law cannot be invalidated by the international law or the other way around. And so, the obligations which arise under one system cannot be transferred automatically to the other one. This gives rise to the conflicts as both the systems deal with a common subject and in absence of an arrangement the systems would always be conflicted (Klabbers, 2013).
Even though the understanding and critique of the theories help in gaining an understanding between the relationships amongst the two laws, the question can be resolved through the analysis of its practical applicability.
The first view entails the supremacy of the domestic law before the international courts. The general view is that the internal law cannot be relied upon for justifying a breach of an international law. This is because the domestic law cannot be used as an excuse by the state for breaching the international law (Abass, 2014). This can be further affirmed with some cases.
In Alabama Claims Arbitration (1872 – American Civil War matter), to attack the American shipping, Britain had allowed a Confederate warship’s sailing from Liverpool the absence of a legislation to prevent the departure of construction of the ship by Britain could not absolve Britain from the liability arising out of the damages done by the warship (Fassbender, Peters and Peter, 2012). In Elettronica Sicula SpA (ELSI) Case ICJ Rep. 1989, the acts of the public official were lawful under the international law but unlawful under the domestic law (Paparinskis, 2013).
In the case of Texaco Overseas Petroleum Company v. Libya 1977, 53 ILR 389, the foreign-owned property’s legal expropriation could not be excused by the fact that the same was lawful under the domestic law, when the same was illegal under the international law (Rothwell et al. 2010). Judge Shahabuddeen, in the Lockerbie Case ICJ Rep, 1992, held that the inability of acting as per the municipal law would not act as a defense for the nonconformity to the international obligations relating to the extradition of the internationally criminal suspect (Shaw, 2014).
The municipal law can be used before the international courts or tribunals as a proof to the practice of state as a part of the customary international law. In the case of Barcelona Traction Case (Belgium v Spain, 2nd phase) ICJ Rep. 1973, the court held that there was a lack of jus standi on part of Belgium for exercising the diplomatic protection towards the Canadian company’s shareholders regarding the measures which were taken against the company located in Spain. Though, from the municipal law, a limited principle was derived, and this permitted the lifting of the corporate veil, for the case of evasion of legal obligation, malfeasance, misuse and fraud (Abass, 2014).
The practice of UK regarding the application of international law in the domestic proceedings is far more complicated in comparison to the domestic law in the international courts. In order to explain the manner in which the international law is applied in the domestic courts of UK, two principal theories can be relied upon. These two theories are that of incorporation and transformation (Abass, 2014).
Under the incorporation theory, the international law is deemed as a part of the domestic law automatically. Hence, the need for transforming the constitutional procedures into domestic law is given away with. The applicability of this doctrine remains to the customary international law up to a huge margin. And the specific approach for a domestic court is dependent upon the source of law, in form of general principle, treaty or customs (Dixon, 2013).
The other theory is the transformation one, as per which both the laws are separate and distinctive. So, for any international law’s rule to be applicable in the domestic jurisdiction there is a need for it to be specifically and expressly transformed into the domestic law, through an appropriate constitutional process, for instance, in form of an Act of the Parliament (Abass, 2014).
Since the 18th century, the UK courts’ practice has had a mixed history. At that time, the initial approach, i.e., the incorporation was the dominant approach. In the case of Triquet v. Bath (1764) 3 Burr 1478, the incorporation of the customary law denoted as being common law’s internal and integral part. Though, in case of doctrine of precedent, where there was a conflict between the customary laws and the decided case, the hierarchy of jurisdiction would be relied upon for the resolution (Swarb, 2014).
Though, the claims made in the 19th century highlighted the changes being made in the favor of the other theory, i.e., towards transformation. In the case of R v. Keyn (1876) 2 Ex D 63, Franconian was a German ship collided and sank a UK ship. Being in the jurisdiction of UK, the captain of German ship was indicted for manslaughter in London. The issue of this case revolved around the jurisdiction of the English court in trying the offence. It was held that there was no domestic legislation which conferred the jurisdiction upon the courts of UK. However, the same would be allowed as per the international law and also in case of enactment of such power through the Parliament in legislation (Swarb, 2017).
Lord Alverstone, in the case of West Rand Gold Mining Company Case (1906) or the West Rand Central Gold Mining Company, Limited v The King  2 K.B. 391, stated that something which has received the consent of the civilized nations would also have received the UK’s assent and so, it has to be applied by the domestic courts, based on the incorporation theory (United Settlement, 2017). In Mortensen v. Peters (1906) 8 F (J) 93, the Scottish court convicted a Danish captain for violating the byelaws of the nation, relating to the area which was back then covered by such byelaws. Lord Dunedin held that the statue was indeed superior to the international law as an Act of Parliament had given it the priority even when it results in the contravention of the international law (Swarb, 2016).
The international is not based upon judicial precedent and so, a development could be given effect to without having to wait for the House of Lords to do the same. There is also need to discuss upon the treaties and their impact over the domestic proceedings of the UK courts. The issue here deals with the specific constitutional process in every state in order for a treaty to transform into a domestic law. Treaties are different from judicial precedent in the sense that they can depart from the previous rulings or the practice of the state. The treaty making authority lies with the executive branch of the state and an example of this is the recent event of Brexit (Abass, 2014).
In order to define the relationship between the executive and legislature, the incorporation doctrine proves irrelevant regarding the application of the treaty law in the domestic proceedings. In UK, the power of treaty vests with the Crown. And the same cannot be challenged by the court of law. Though, the treaties come to force through the legislation of the Parliament alone. The general practice in UK mandates the reading of treaty before both the houses of Parliament. And the practice as per the international law has to be construed with, so as to evade any conflicts with the international law. Though, where there is a conflict, the domestic law of UK prevails. On the other hand, the laws of European Union prevail over the domestic law (Abass, 2014).
In short, the relationship between the international and municipal law is a complex one and defining the supremacy of one over the other is a controversial issue. The complexity is raised when the same is acknowledged in the context of UK, based upon the circumstances highlighted above.
Abass, A. (2014) Complete International Law. 2nd ed. Oxford: Oxford University Press, pp. 303-324.
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