International Law 3

Relationship between International Law

and
Domestic Law

Theories of Relationship

Monism/ unity of the legal system

Dualism/separation of legal system
Moderate or middle path

Concept of Monism
The monists view that
- there is no difference between national and international
law. They think that the science of law or the body of law is
the law itself. The national law and the international law are
the just two branches of a single body of science of law. They
are the constituent elements of a single body of law.
They argue that
-the rules of both international and national law operate in the same sphere
of influence and concerned with the same subject matter, that is,
individuals. What ever legal systems we deal with, be it national, regional
or international, all are meant to be dealing with individuals. In the words
of Lauterpacht, state does not exist as a legal entity on its own. It is the
individual human beings that are the fundamental element of all societies.

Continued
- the purpose of both legal systems is identical.
- the rights and obligations of one legal system can be transferable to other
system. For example, human rights are available in domestic legal system
as well as in international legal system.
-national and international law are complementary or supportive to each
other in the sense that rights and obligations under both systems are there to
serve the interests of people.
Kelsen, the monist positivist argues that international law derives from the
practice of states and national law derives from state as established in
international law.
The monist naturalists argue both systems are subject to higher legal order,
the law of nature.

Concept of Dualism

Dualists argue that

a. international and national law are completely two separate
and distinct legal systems.
b. they operate into separate water-tight compartment.

c. they do not operate in the same sphere of influence.

International law and national law differ as to their sources, the
relation they regulate and their legal content and application.
National legal systems are not common, they are diverse and
thus they can not interact with international law because of
significant diversity and the international laws are common in
nature.

Continued
International law regulates the relations between states
where as national law regulates the rights and obligations of
individuals within the states.
There is no room for the transforming rights and obligations
from one system to another. Because, the individuals are
the citizens of a country and subject to the national law. In
addition, the sources and the subject of both systems are
different. There are many points where they come into
conflict.
National law operates vertically where sovereign power of
the state is the law-maker and all others are law-abider
while international law operates horizontally where states
are both creator and abider of the

Moderate or middle ground (a third group)

This is the theory of coordination, not confrontation like
monism and dualism.
This theory supposes that both monism and dualism are the
extreme expression of articulating the relationship between
national and international law which is flawed more or less,
because they do not cooperate and conflict perse.
It argues against dualism that international and national law
interact and intersect. The conflict lies with the obligation
created by them, not with system itself.
It argues against monism that the transfer of rights and
obligations as monists claim is not automatic ( (see the
decision of Federal Court in Minister for Immigration and
Ethnic Affairs v Teoh 1995: the place of unincorporated treaty
in Australian law was not considered).

Continued
The transfer of rights and obligations can be possible through a
process of incorporation, harmonization and adoption. In
another words, there must be a mechanism through which
rights and obligations can be transferred from one system to
another. For examples, adoption of treaty provisions into
national law, European Unions plan to harmonize the 27
conflicting domestic laws
The dualist view is not quite true that obligations of international and
domestic law are not transferable. For example, as per Art.38(1) (c)
domestic law is a fertile source of international law at the formative stage.
Another example is, there are too many areas of domestic law which are
influenced by international law such as human rights, environmental law,
trade law, and law of international rivers or multi-territorial rivers.

Continued
It argues that both systems benefit from each other.
It is true that international will not interfere in internal
matter of a state . But this principle of non-interference on
the part of international law is not absolute.
It also argues that it is erroneous for both groups to argue that two legal
system conflict or unify among each other. It is the obligations that emanate
from the systems can come into conflict. It is evident in many crossboarder issues such as terrorism, human rights, environment, global
worming. In all these issues the interests of state and the interests of people
are different.
For example Chines human rights law can come into
conflict with various human rights obligations developed in UN human
rights instruments.

Conclusion
National and international legal system operate in their own
domain without any presumption of conflict or hostility to
each other.
Both systems are important and mutually supportive and
interacting with each other in contemporary context in relation
to many trans-boundary issues. For example, state has the
primary responsibility for the implementation of HR, the
secondary responsibility lies with international authority
formed under international law.

Continued
International law is not concerned at all about domestic law
unless a domestic law or domestic Act infringes or violates the
assumed or assigned international obligation ( for that state)
emanating from international law. Examples can be taken
from forms of government or South African apartheid policy
under Article 4 ( discriminates indigenous black voters) of
the Electoral Act as well as in the constitution of South
Africa violated an obligation as they assumed by ratifying
1965 UN Convention on the Elimination of Racial
Discrimination. Here the obligation of domestic law comes
into conflict with international obligation.

Relation between national and international law:

Australian perspective
International customary law is not automatically a part of
Australian law. In Chow Hung Ching v R Lathman CJ argued
international law is not as such part of the law of
Australiabut a universally recognised principle of
international law would be applied by our courts.
The ruling in Mabo v Queensland ( No2) recognises the
normative relevance of customary international law to the
Australian common law and their relationship more exact
with greater authoritative weight, but does not endorse the
automatic incorporation theory. International law is thought to
be an influence on , rather than part of common law.

Continued
International treaty obligations voluntarily assumed by
Australia do not necessarily have legal effect within
Australia. To create treaty obligation within Australia,
incorporation of treaty into national law through the
enactment of implementing legislation is essential.
Obligations under unincorporated treaties are not
binding in Australia. In Minister for Immigration and
Ethnic Affairs v Teoh case, the High Court held that
treaty is not a part of Australian law until enacted as
legislation, however the ratification of convention has
significance, it is not a mere ineffectual act.

Continued
Relevance of international treaties in interpreting
domestic statutes:
In Polities v Commonwealth it is recognised that a
statute is to be interpreted and applied , as per as its
language permits, so that it is in conformity, not in
conflict with the established rules of international
law.

Influence of international law on domestic law in

Australia
Influence of human rights treaties: In Mabo Case Brennan J said:
The opening up of international remedies to individualsbrings to
bear on the common the powerful influence of the Covenant and the
international standards it purports.
Infusion of international law and jurisprudence into Australian
common law in the field of human right has been established
through judicial activism. ( see Theophanous v Herald & Times Ltd,
Levy v Victoria, language v Australian Broadcasting Commission,
Kruger v Commonwealth ( stolen generation case).
Influence of trade and investment treaties

The subject of, and personality in , International Law

The concept of subject of international law is not same as
international legal personality.
The subject of any legal system is all about rights and
obligations. If certain rights are conferred on an entity under
a legal system and that entity is required to perform certain
duties under that legal system, the entity is the subject of that
legal system.
When international law creates some rights for an entity and
imposes some obligations, that entity becomes the subject of
international law.

Continued
Broadly speaking, according to Martin Dixon, the main capacities of
an international legal person include the ability
- to make claims before international ( and national) tribunals in
order to vindicate rights given by international law;
- to be subject to some or all of the obligations imposed by
international law; and
- to have the power to make valid international agreements binding
in international law.
legal personality in international law does not mean only the
holders of rights and obligations under international law, but also
include the capacity/ability to be the bearer of international legal
rights and obligations.

What is international legal personality ?

Attributes of international legal personality include

- capacity or ability to exercise rights conferred upon by
international law;
- capacity to be the bearer of rights and duties conferred upon
by international law
- capacity to perform obligations imposed upon by
international law; and
- capacity to sue and be sued under international law

Subjects of international law

States
Non-state entities: international organizations,
individuals, colonial, trust and non-self governing
territories
Controversial subjects: emerging State and
revolutionary regimes

State as a subject of international law

Historically since the emergence of legal positivism in the 16th and 17th centuries states
were the sole subject and sole legal person of international law until 2nd WW. But after
that States are no longer the sole subject of international law.

States are nevertheless the most important and dominant subject of international law in
the contemporary international law as international law was originally conceived as a
system of rules governing the relations of states among themselves. They have all of the
capacities required for subject-hood and international legal personality and it is with
their rights and duties that the larger part of international law is concerned.
ICJ says States are the objective and the principal subject of international law.

The capacities of other international persons are dependent, at least, initially upon the
agreement of states.

To be a subject and a person of international law the State must have qualifications as set
out in Montevideo Convention on the Rights and Duties of States.

Non-state entities: International organizations as a

subject and legal person

International organizations are recognized as subjects of international law as well as international

legal persons such as UN, World Bank, IMF, WTO. These organizations have ample influence on
international law-making process more than many sovereign states.

The international legal personality of UN has been recognized by ICJ in the Reparations case in its
Advisory Opinion sought by the UN on its capacity to bring an international claim against Israel for
reparations for the death Count Bernadotte. The ICJ held the organization is an international
person.it is a subject of international law and capable of possessing international rights and
duties, and that it has the capacity to maintain its rights by bringing international claims.

The international voluntary Non-Governmental Organizations ( NGOs) such as Amnesty

International (for the protection and promotion of HR ) and Green Peace ( for environment) are also
recognized as having the status of international legal personality which they have acquired through
their capacity and ability to perform in international plane.

Organs of national liberation movement enjoys some form of international legal personality
specially following the UN Declaration on the Granting of Independence of Colonial Countries in
1960.

Individuals as a subject of international law

Individuals are subjects of international law from time immemorial

and still they are. Only the positivism attempted to curtail their
status with an argument that they are the object, not the subject of
international law.
The movement for the protection and promotion of human rights
after 2nd WW has elevated the individuals to the status of subject of
international as well as international legal person.
They can enjoy the whole range of recognized rights under
international legal system as well as procedural locus standi before
various international legal judicial and quasi-judicial forums.

Continued
Legal personality established under international criminal law :
a. Article 6 of the Nuremberg Charter: principles relating to
international criminal responsibility of individuals against peace, war
crimes and crimes against humanity
b. Decision of Nuremberg Tribunal: International law imposes
duties and liabilities upon individuals as well as states.
c. Decision of Tokyo War Crimes Tribunal holding individuals for
war crimes
d. Article 4 of the Convention on the Prevention and Punishment of
the Crime of Genocide 1948: persons committing genocide shall be
punished, whether they are constitutionally responsible rulers, public
officials or private individuals.

Continued

e. The Rome Statute of ICC 1998: Articles 6, 7 and 8

establish individual criminal responsibility for the
commission of any of listed crimes such as genocide,
war crimes, crimes against humanity etc. irrespective of
the laws of his own country.
f. Mandate given to ICTY and ICTR to prosecute and
punish individuals for the commission of atrocities,
ethnic cleansing, innocent civilian killings, war crimes
and crimes against humanity during Yugoslovia and
Rwandan genocide.

Continued
g. Art. 6 of ILC Draft Code on Offences against the Peace and
Security of Mankind 1987:
Individual responsibility for
committing , leading, planning, organising and ordering crimes
against peace and security

h. Criminal responsibility under other international documents

such as art. 105 of UNCLOS regards piracy as a crime of
international significance, providing remedies enforceable in
international law.

Continued

All international human rights treaties have

given individuals a long list of substantive
rights, such as ICCPR and ICESCR, Convention on the
Elimination of All Forms of Discrimination Against Women,
Convention on the Rights of Child 1989, UN Declaration on
the Rights of Indigenous Peoples 2007, regional conventions
including European Convention on Human Rights 1950, InterAmerican Convention of Human Rights 1969, African Charter
of Human and Peoples Rights 1979.

The status of exiled government in

international law
General conditions for acquiring international legal
personality by a state government :
Effective territorial control
Effective internal stability/political authority
Power to enter into international relations

Continued

The exiled governments may enjoy some form of international legal personality, that
means, partial legal personality provided following conditions are met:
1. Ability

to prove an effective political control through

involvement in armed conflict, establishing armed forces,
Controlling merchant ships carrying its flag,
rallying a large number of nationals to the cause of liberation of
their country,
maintaining authority over certain parts of its territory and
population, and displaying partial effectiveness by undermining the
effective territorial control of its enemy.
Evidence of representative character expressed through public
support in democratic election

Continued
2.Through active participation in international
relations.
3. Ability to conduct external activities governed by
international law. For example, during the war of
liberation, the exiled government of Bangladesh
opened diplomatic missions in London, New Delhi,
Washington, Sweden and Hong Kong.

Organs of national liberation war

Organs of national liberation war may enjoy
international legal personality, although they have
some functional limitations.
The reasons/justification or legal foundation for such
status:
a. recognition of war of liberation as international
armed conflict by the1977 Additional protocol 1 to
Four Geneva Conventions of 1948 and thus
regulating the activities of national liberation groups
and freedom fighters under international law

Continued
b. The war of liberation is intended for establishing the peoples
right to self-determination which recognised as fundamental right
and protected by international law (see art.1(1) of ICCPR, 1966,
art.1(1) of ICESCR,1966). Moreover, attainment of this right is
one of the cardinal objectives of UN charter. ( see art.1(2). The
denial of this right constitutes a breach of specific and obligatory
provisions of the UN Charter, its various other authoritative
prescriptions, and rules of international law.

Continued
c. Engagement in diplomatic activities and the
acceptance by UN of their participation in international
affairs. UNGA Resolution 3247 in 1974 authorises,
national liberation groups to participate in the sessions
of the General Assembly, conferences, and meetings of
specialised agencies.
Example: active participation of PLO in different
UNGA meetings in the status of observer.

Multinational Corporations
Multinational corporations do not have any status in international law.
The arguments are:
a.
they are
profit-making entities, they are not meant for
participation in maintaining international relations for peace and
security and therefore they should not be the
subject
of
international law. They are better to be left with self- regulation.
b.

they are treated as citizens of the country of incorporation and subject

to the laws of that country.
ICJ in Bercelona Traction case in 1970 gave MNCs the same status as
citizens , defined by their ties to a particular state of incorporation whose law
and jurisdiction are applicable.

Continued
c. MNCs are regulated by the market forces and there is no
need for artificial control. Artificial regulation may
result in distortion and instability.

MNCs are treated as the objects of international legal

obligation as they
a. play a major role on the international plane;
b. generate pressures on national authorities and
international bodies; and
c. influence the international decision-making process.

Continued

Initiatives for the regulation of MNCs under international law

for MNCs
1. Development of self-regulatory/non-binding instruments
a. OECD Guidelines on Multinational Enterprises 1976
b. UN Norms on the Responsibilities of Transnational Corporations and
other Business Enterprises with Regard to Human Rights,2003
c. ILO Tripartite Declaration of Principles Concerning Multinational
Enterprises and Social Policy,1977 ( Primary Responsibility for state
and secondary responsibility for MNCs)
d. The New International Economic Order ( NIEO): a set of principles
and policies to regulate restrictive trade practice of MNCs

Continued

Institutional initiative for regulation of MNCs

and international plane
a. UN Commission on Transnational Corporations (established
in 1979, closed in 1993)
b. Commission on International Investment and MNCs ,1995
( as part of UNCTAD)
c. Sessional Working Group on Working Methods and
Activities of MNCs ( set by UN Sub-commission on Human
Rights)
d. UN Global Compact ( Ten Principles in the areas of human
rights, labour, environment and anti-corruption ) 1999, 2002

Continued
Regional bodies such as European Union, European Council
and Organisation of American States
Way forward
a. Development of normative standards
b. likelihood of creating special status for MNCs in customary
international law
c. Concerted effort for the development regulatory regime with
attribution of legal responsibility

The status of terrorist organizations

The terrorists organizations do not enjoy any international
legal personality for the simple reason that states are not
willing to grant them any status in international law. States
think they should be tried under domestic criminal system.
The most important point of argument against their status is
based on jurisprudential contradiction or juridical difficulty. If
responsibility or obligation under international is attributed to
them, they must also have rights in international law.
The initiative for developing international law to combat
global terrorism has no concern for the status, personality and
competence of terrorists under international law.

Continued
Responsibility under international law
State sponsored vs. private terrorism
Article 8: Responsibility of States for Internationally
Wrongful Acts of 2001
Decision of ICJ in the Case Concerning the Application
of Genocide Convention ( Bosnia and Harzegovina v
Serbia and Montenegro)

Rigid approach: non-attribution of responsibility under

international law
Flexible approach: Instances of financing and safe hourbering.

Conclusion

The concept of personality is divisible, it can be lost

and acquired.
Personality can be partial or full.
Personality of states and others need not be identical,
it can be dissimilar in terms of rights and obligations.

International legal personality

Determine the status of terrorist organisations in
international law in terms of their legal personality.
Do you think that terrorist organisations should be
attributed legal personality in international law in
order to curb terrorism in wider scale.

About Class Test on 29th March

1. Class test 20% on 7-8 March (mandatory for all)
2. Starts sharply at the start of your tutorials (ie 11.05/12.05/1.05 etc) with
5 minutes question reading time, ie writing starts sharply at 11.10/12.10 etc
3. Late comers will not be given any extra time
4 Writing ends sharply at 5 minutes ahead of your tutorial ending time (ie
11.50/12.50), ie total 40 minutes writing test (example 11.10 to 11.50)
5. Form: short questions/answers (not essay or hypothetical)
6. First 4 sessions (ie up to statehood and recognition inclusive) will be
covered.
7. Closed book test (no international law book is allowed), but notes are
allowed
8. Students are required to bring their respective answer papers and pens
9. There is no alternative or substitute for this mandatory class test