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3. International Law vs Domestic Law General
Australian Constitution is relatively silent on the status of international law.
* Only makes it clear that the powers of the executive are sufficient wide to include a power to negotiate and conclude treaties and that the High Court has original jurisdiction in matters concerning treaties. Westminster parliamentary countries' common methods adopted in the case of treaties have included:
* Direct implementation of the treaty into municipal law by way of an implementing statute.
* Partial implementation of the treaty into municipal law by way of a statute which partially refers to certain international law obligations;
* Broad reference in a statute to international law obligations or specific treaties without precise indication as to its application. Arguments based on international law and municipal law
* Internationalist may argue that all international law should have municipal effect whether by constitutional process or thorough statutory implementation.
* Nationalist would argue in favour of the retention of State sovereignty in which the Parliament or legislature remains supreme.
* International law would only have influence if a conscious decision has been made to adopt it at a national level. Dualism and Monism
In international law, conflict between municipal law and international law often arise. There are two theories that attempt to address this conflict: the dualist theory and the monist theory.
* Basically, the dualist theory holds international law and municipal law to be two distinct and separate laws.
* The monist theory considers international law and municipal law to constitute only one system of law. Dualist Theory Under this theory, international law and municipal law are two distinct system of law. Municipal Law
* Custom grown up within the boundaries of the State concerned, and
* Statutes enacted by law-making authority.
* Custom grown up among States, and
* Law-making treaties.
* State-person relations, and
* Person-person (interpersonal) relations
State - State relations
The law of the sovereign is over individuals.
The law is not over, but between states, and therefore is the weaker law
According to most dualists, municipal law prevails. Dualists are positivists who put strong emphasis on sovereignty.
* Why? --> Positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states. Monist Theory Municipal law and international law are essentially the same. There are two primary divisions with regard to the monist theory 1
* The ethical position on "human rights" (supported by Lauterpacht)
*> The 'naturalist' strand sees the primary function of all law as concerned with the well-being of individuals, and advocates that international law is the best way of achieving this well-being. It is an approach characterised by deep suspicion of an international system based upon the sovereignty and absolute independence of states, and by faith in
1 Shaw, 2003. International Law, 5th ed.
1 3. International Law vs Domestic Law
the capacity of the rules of international law to imbue the international order with a sense of moral purpose and justice founded upon respect for human rights and the welfare of individual.
* The formalistic logical approach (supported by Kelsen)
*> This approach finds its basis on Kant's philosophy. Under this approach, international law is superior to municipal law. Law is regarded as constituting an order which lays down patterns of behaviour that ought to be followed, coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred. Since the same definition appertains within both the internal sphere and the international sphere, a logical unity is forged, and because states owe their legal relationship to one another to the rules of international law, such as the one positing equality, since states cannot be equal before the law without a rule to that effect, it follows that international law is superior to or more basic than municipal law.
The "no common field" approach (supported by Fitzmaurice and Rosseau) There arises a third approach, under which there is no common field between International Law and Municipal Law. It considers municipal law and domestic law as distinct laws, much like the French Rule and the English Rule are different systems of law, one not being superior over the other. They are both the legal element contained within the domestic and international systems respectively, and they exist within different juridical orders.
* Ultimately therefore, there can be no conflict between any two systems in the domestic field, for any apparent conflict is automatically settled by the domestic conflict rules of the forum. Any conflict between them in the international field, that is to say on the inter-governmental plane, would fall to be resolved by international law, because in that field international law is not only supreme, but in effect the only system there is. The Theory of harmonisation (supported by O'Connell) It follows that a monistic solution to the problem of the relationship of international law and municipal law fails because it would treat the one system as a derivation of the other, ignoring the physical, metaphysical and social realities which in fact detach them. But a dualist solution is equally deficient because it ignores the all-prevailing reality of the universum of human experience. The correct position is that international law and municipal law are concordant bodies of doctrine, each autonomous in the sense that it is directed to a specific, and, to some extent, an exclusive area of human conduct, but harmonious in that in their totality the several rules aim at a basic human good. Municipal Law in International Law
The general rule is that a State may not invoke provisions of its own laws as a justification for the violation of its obligations under international law:VCLT art.27
* Neither may it claim that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent:VCLT art. 46(1) The exception to the general rule is when there is a manifest violation of the fundamental laws of the State concerned.
* It is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith:VCLT art.46(2)
International Law in Municipal Law
Dualism also applies in this regime. In order for international law to become part of domestic law, it has to be made part of the municipal law. There are two ways of making international law a part of domestic law: incorporation and transformation: Trendex Trading v Central Bank of Nigeria (1977)
* Doctrine of incorporation
*> The rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament.
Under this doctrine, where the rules of international law change, our English law changes with them.
* Doctrine of transformation 2
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