32 International Treaties vs. National and Domestic Laws

Rohini Sen

epgp books

 

 

Table of Contents

  1. Learning Outcomes
  1. Introduction
  1. Difference between International Law and Domestic Law
  1. Traditional Theories
  1. International Law’s perspective on National Law
  1. National Law’s perspective on International Law
  1. International courts’ use of Domestic Law
  1. Implementation of International Law in National Law
  1. The incorporation of International Human Rights Law into Domestic Law
  1. The Inviolable Nature of International Peremptory Norms (Jus Cogens) and IHL
  1. Summary:

 

1. Learning Outcomes:

  • To give students an overview of different conventions, pacts, legislations, agreements and other forms of international legal instruments to enforce international law and the way it can be incorporated in National legal systems
  • By the end of the module, students will have an understanding of different ways international law penetrates national and domestic legal jurisdictions, and its respective limits

2. International Treaties and National and Domestic Laws

International law comprises of a system of rules and principles of universal application that govern the international relations between sovereign states and other institutional subjects of international law. In other words, International laws are a set of rules that are binding between states and between nations.

As per the 1969 Vienna Convention on the Law of Treaties, a treaty refers to “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

The term treaty means and includes Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Declarations as well as Covenants. There are two types of treaties – bilateral and multilateral. A treaty is binding only on the parties to the agreement. The basic principle underlying the law of treaties is pacta sunt servanda which means every treaty in force is binding upon the parties to it and must be performed by them in good faith.

3. Difference between International Law and Domestic Law

 

National law is concerned primarily with the legal rights and duties of legal persons (individuals and companies) within the state or similar territorial entity.  National Law is developed by a legal superior, mainly the parliament or person with legislative power, who is considered to be legally competent by the society and in situations where the governing power has both the authority and practical competence to make and enforce that law.

On the other hand, International law focuses on rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union. International law focuses on the rights and duties of the state themselves. There is no legal superior in international law; all the states are given equal rights.

Traditional Theories

The relationship between national or domestic law and international law is explained through two assertive theories – monism and dualism.

The first theory, Monism, is the idea or it assumes that international law and national law are simply two components of a single legal system or body of knowledge, and regards ‘law’ as one entity. Hans Kelson was the founder of this theory. Monism goes on to say that national law and international law are part of one system in which international law is at the top of pyramid validating all the acts of national law. In case of any conflict, international law is followed as it precedes the national law. In monist models, a ratified international treaty forms part of the domestic legal order and is directly incorporated and often directly applied at the national level. Moreover, monism in practice expects the laws of nations legal institutions to be similar to those of international law, and in case they aren’t, the national jurisdiction should give effect to international law and not to its own internal law.

Dualism, the other theory, was proposed by Triepel and Anzilotti. This theory states that that international law and national or municipal law are two separate and distinct legal systems. Due to these laws being of different system, international law wouldn’t form part of the domestic law of the state. If any of the international laws are enforced in the state, it would be so because of the adoption by the national law of state. Dualist models of the relationship between international law and domestic law propose that a treaty takes effect internationally after being signed by the head of state, but in order for it to have sway over domestic legal affairs, the treaty’s text must be adopted through a law of parliament.  National law is given priority over international law under this system. Also, in order to make international law binding on binding authorities, it needs to be transformed into national law.

5. International Law’s perspective on National Law

As stated in Article 27 of the Vienna Convention on Law of Treaties, national law cannot be used to justify non-compliance of international law. This shows that international law has a higher standard with respect to national law.

As held in the case of Mexico vs. United States of America, “the rights granted under the Vienna Convention on Consular Relations are treaty rights which the US has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under the US constitutional law.”

Thus, it is the general duty of the Nation to bring its national law in conformity with the obligations posted under international law. It is one of the general facts that when an international rule requires the state to change a law to comply with that rule, state becomes duty bound to put in all the necessary steps to amend/ repeal that law. As held by the Permanent Court of International Justice in its judgement on Exchange of Greek and Turkish Populations, “a principle which is self-evident according to which a state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken.”

But, this conformity needs to be integrated into domestic law only when the state fails to observe some obligation on the specific occasion.

6. National Law’s perspective on International Law

Generally, national law has a duty imposed on it by the international law to enact certain national obligation with the intention of implementing the international obligation. One such example in the field of human rights law is of the Article 2(2) of the International Covenant on Civil and Political Rights which states that, “…each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.’

It is a common obligation placed on all the nations to ensure right to fair trial is provided in the nations. It requires setting up of a well-functioning legal system. As stated in Article 9 of the Convention on Cluster Munitions, “Each State Party shall take all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.”

Moreover, international obligations are imposed in all spheres of law be it human rights or criminal law. An example of international rule being imposed on national law is the Article 88 of the International Criminal Court Statute which states that “State parties shall ensure that there are procedures available under their national law for all the forms of cooperation which are specified under this part [Part 9 on international cooperation and judicial assistance].”

7. International courts’ use of Domestic Law

Each international court uses different approaches to come to a conclusion. International Court of Justice being the most pronounced one states in Article 38(1) (d) that “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”

Since, none of the ICJ judgements act as precedents, International Court of Justice judges relies on decisions of other international courts or decisions of national courts when an issue of international law arises.

Moreover, the decision passes by the municipal courts are referred to as ‘facts’ that can either cause a dispute or breach of international law. As held in the case of Certain German Interests in Polish Upper Silesia by the Permanent Court of International Justice, “From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.”

Thus, in conclusion, international courts can’t be substituted as appeal courts for issues pertaining to domestic law. But at the same time, international law cannot declare any national law as unconstitutional just because is it not in accordance with the international law.

8. Implementation of International Law in National Law

To maintain peace and order, many states do try to integrate international law into their domestic system, but the problem arises due to lack of a proper implementation system. Since there is no general rule on how states should implement international, on one hand, it gives state a lot of power to implement international law in the method they deem best, but on the other hand, it creates lack of uniformity with respect to the position of international law in the national legal system.

Treaties are therefore written agreements which create legal obligations between States. There are various procedures to have States accede to such proposed treaties, where the text of the treaty is adopted in an international conference, which calls for States to sign/ratify or negotiate the wording of the text. The treaty becomes open for signature for a period of time, for instance, 12 months. States have to consent to which, by virtue of it they are bound by the signed treaty. This is known as ratification or otherwise submitting the instrument of accession. The State if disintegrated into multiple new states, may also be party to the treaties, they are known as State succession or continuation.

While IHL may not be able to curb suffering and destruction that wars inherently ensue, the least the States can do by complying with such laws is that they minimize some level of suffering, without which victims are bound to be abused. Protecting fundamental rights and helping to protect vulnerable people is the hallmark of IHL, and more states ratifying such treatises strengthens the international consensus on the limit to the effects of such wars.

States ratifying IHL treaties becomes essential to specifically safeguard the lives and dignity of victims of armed conflict, hence forming a juridical basis for enforcement.

If a state is part of a particular treaty, then only the head of the state is competent enough to make or ratify the concerned treaty, but it needs to be discussed with the government of that state. Thus, there is no separate system used to incorporate international law in national law. Rather, national laws are such that they provide for automatic incorporation of international rules into domestic law. The notion of all nations consenting to the treaty in the same manner and interpretation is a rather difficult proposition. In order to ensure that the States consensually at the very bare minimum, comply with the purpose and object of the treaty to not undermine its substance, a reservation or an interpretative declaration may be made by a State that would not want to comply with every provision or may declare its understanding based on the interpretation of a particular provision and does not purport to exclude or modify the legal effect of the treaty. Cases where the States undermine the very nature of the treaty, the Signatories of the treaty may object, which would want the questioning state to reconsider their position and confirm their declarations. These declarations have to be attached with the signature of ratification.

9. The incorporation of International Human Rights Law into Domestic Law

For smooth functioning of international law, it is necessary for the domestic courts to integrate the rules into their legal system. Direct effect of international law on national law allows international human rights law to rely on national courts for implementation. However, direct effect is not the only solution; there are various restrictions which can be put up by the State. The State may adopt certain legislation in contradiction with the international rule, or it could promulgate norms restricting the possibility that an international treaty may be invoked by individuals before national courts.

Although international law does not have a huge stance in the international arena, it is necessary to emerge international human rights law too. Emergence of international human rights law would give people the satisfaction of knowing that after the horrors of World War II and the wars in Europe steps are being taken to safeguard the interest of citizens.

One can say that the creation of the United Nations Organization and the commitment shown towards human rights was a form of demonstrating to their own constituencies that, in the aftermath of World War II something could be done to prevent their sons from returning to the battlefield and to prevent that their countries could become Germany, the domestic law of which was unable to prevent the massacre.

Thus, the role of international law is to maintain influence on a state’s politics to ensure democracy is followed. However, all the effort put in by the international law could be set aside by a change in domestic law. A statute may abolish an incorporated treaty, or there may be a legislative declaration that a treaty does not contemplate a right to claim before domestic courts.  But, it can be said that the past experience of human rights violations has strengthened the international human rights movement which has helped in imposing certain restrictions on domestic laws.

One such case in which Nations have changed their domestic law to integrate human rights law was the case of Filartiga v. Pena Irala where it was not necessary for the United States to ratify a specific human rights treaty for domestic courts to assert their jurisdiction to handle a torts case for torture and homicide committed in Paraguay, by a Paraguayan national against another Paraguayan.

10.The Inviolable Nature of International Peremptory Norms (Jus Cogens) and IHL

The notion of Jus Cogen in international law encompasses the notion of peremptory norms in international law. According to International law, that there are certain overriding principles that form a corpus of jus cogens. These principles dictate that no State can derogate from, by way of treaty. The object and scope of the treaty has to be in compliance with these norms, in order to have any legal bearing in international law, failure to do so will render the treaty or arrangement void. The peremptory nature of the laws restricts the freedom of states to form arbitrary and conflicting to the higher principles of international law. While there has been some confusion on the ambiguity of such norms, consensus finally reached as to a definition in the Vienna Convention where Article 53 on the Law of Treaties 1969.

While the theories of international principally always accepted the wider scope of peremptory norms, but it lacked a binding effect, so much as to render treaties null and void. In such a dilemma, the ICJ seemingly addressed the existence of norms in international law as a special category of international norms that require a degree of prominence. In commenting about the Genocide convention, it said that in such conventions, States do not have any interests of their own, but a common interest, which is accomplishment of the high purposes which are the raison d’être of the convention….the high

ideals inspired by the convention, by virtue of the common will of the common parties, the foundation and measures of its provisions.”

The same was discussed in the Vienna Conference, where they had appointed Special Rapporteurs for the acceptance of the notion of peremptory norms in international law. In shory ,International law Commission stated formally recognized the Jus Cogens nature of international law, and the draft that incepted Article 53, was adopted by a large majority.

Article 53, henceforth formally recognized the international accepted definition of jus cogens:

Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Not only that, but Article der the Vienna Convention also empowers to invalidate any pre-existing treaty that might be in conflict with the emergence of any new peremptory norm.

11.Summary:

We have mainly learnt the different legal and normative grounds on which international law is currently percolating the national legal systems of the world(By monist and dualist legal theories), and creating a compliance for them. We also learnt that there are certain mechanisms (ratification of treatises, peremptory norms and bill of rights) by which international norms operate and function, and the limits to achieving the same.

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Reference

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