Documente Academic
Documente Profesional
Documente Cultură
Relationship
Between
International
and
Municipal
Law
2 partI
The Law
of Nations
The
primary
question
arising concerning the relations between customary
international law and municipal law is the degree to which rules of
international law have
been incorporated/absorbed into municipal law so that they have become part of
the law of the land, with little conflict to be expected in the application or enforcement of the international law norm.
Anglo-American legal opinion has long accepted that customary international
law was part of the law of the land and was enforced, accordingly, by
domestic authorities (doctrine of incorporation). For Great Britain, this position
was laid down in a now-classic case:
W
WEST RAND CENTRAL GOLD MINING CO., LTD, v. THE KING
Great Britain, Kings Bench Div., 1905 (1905) 2 K.B. 391
The company was a British
concern operating a gold mine in the
Transvaal, South Africa. In October 1899,
a quantity of gold valued at 3,804 was
seized from the company by officials of
and by order of the South African
Republic. The company claimed that under
the laws of the Republic, the government
had to return to the owners either the
seized gold or its value. Neither action
was taken, however, as the South African
Republic was conquered in the war that
started in October 1899 and became a
part of the British Empire under the terms
of a proclamation dated September 1,
1900. The company sought to recover the
gold or its value from the British
government by a petition of right, arguing
that the government had succeeded to all
duties, rights, property, and obligations of
the defunct South African Republic by virtue of the conquest and annexation of that
republic.
ISSUES (1) Whether under international
law the sovereign of a conquering state is
liable for the obligations of a conquered
state;
(2) Whether international law forms part
of the law of Great Britain;
(3) Whether the rights and obligations
which were binding on the
conquered state had to be protected
and could be enforced by the
domestic courts of the conquering
state.
DECISION Judgment for the Crown.
FACTS
More recently, Lord Atkin stated in connection with Chung Chi Cheung v.
The King (see Chapter 17) that
the Courts acknowledge the existence of a body of rules which nations accept
among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the
domestic law, so far as it is not inconsistent with rules enacted by statutes or
finally declared by their tribunals.
The traditional theory of the absorption of international law in the domestic
law of a state, illustrated by the West Rand Central Case, has been supplanted by
the more up-to-date British theory of transformation, as expressed by Lord
Denning in
Trendtex Trading Corporation, Ltd. v. Central Bank of Nigeria^ in 1977:
Seeing that the rules of international law have changedand do change
and that the courts have given effect to the changes without any Act of
Parliament, it follows to my mind inexorably that the rules of international
law, as existing from time to time, do form part of our English law. It
follows, too, that a decision of this court, as to what was the ruling of
international law 50 or 60 years ago, is not binding on this court today.
International law knows no
*U. K, Court of Appeal, Civil Division, Jan. 13, 1977 [1977], All E.R. 881, reported in 72
AJIL 417,418 (1978).
chapter 5
partI
partI
11
partI
The Law of
Nations
FACTS Bill in equity brought by
the state of Missouri to prevent a
game warden of the United
States from attempting to enforce
the Migratory Bird Treaty Act of
July 3, 1918, and the regulations
made under that act by the
Secretary of Agriculture.
Congress had passed an act
that sought to regulate the
hunting of migratory birds by
providing closed seasons and
other forms of protection. That
act had been held by a U.S.
District Court to contravene the
provisions of the Constitution as
an invasion of the reserved
powers of the states (United
States v. Shauver, 214 F. 154;
United States v. McCullagh, 221
F. 288).
On December 8, 1916, the
President proclaimed a treaty
between the United States and
Great Britain that recited the value of migratory birds, described
their annual migrations through
parts of Canada and the
DECISION The court upheld both
the treaty and the statute.
REASONING (1) By Article 2,
section 2 of the Constitution, the
power to make treaties is
delegated specifically to the
federal government.
(2) By Article 6 of the
Constitution, treaties made
under the authority of the
United States, along with
the Constitution and laws
of the United States made
in pursuance thereof, are
declared to be the supreme
law of the land.
(3) If the treaty is valid, then
the statute implementing
the treaty is valid also.
13
partI
The Law of
15
Nations
courts have applied that legislation, provided it fell within the
constitutional powers of Congress, in view of the fact that the
Constitution does not forbid Congress to disregard or to violate
international law. On the other hand, such legislation would
cause the U.S. government to be responsible
to other states for
16
violating the treaty or international law.
It must also be assumed that a widely recognized rule of
customary international law provides that a rule of municipal
law adopted subsequent to a treaty and that conflicts with the
provisions of the earlier treaty cannot alter the provisions of the
treaty in international law. Article 27 of the 1969 Vienna
Convention on the Law of Treaties states that a party may not
invoke the provisions of its internal law as justification for its
failure to perform a treaty. Even before 1969, the customary
law rule had received judicial support in a surprising number of
municipal court decisions. Thus, in Librairie Hachette S.A. v.
Societe Cooperative, the Swiss Civil Court of Geneva held that
the Swiss federal law on cartels of 1962 was superseded by the
Franco-Swiss Convention on Jurisdiction and Execution of
Judgments of 1869. More recently the Supreme Court of
Belgium, in the important decision
in Etat Beige v. S.A.
17
Fromagerie Franco-Suisse le Ski, held that a treaty does not
void the conflicting internal law of a party to that treaty but
suspends operation of that law as to any areas of conflict with
the treaty; that is, when a domestic law conflicts with a rule of
international treaty law that has direct effect within the domestic
(municipal) legal order, the treaty prevails, because of the very
nature of international treaty law. The rule has even been
recognized in some national
constitutions, such as those of
18
France and the Netherlands.
But, when a state has failed to adopt by treaty, legislation,
or other public act a policy contrary to a rule of international
law previously assented to by that state, then the courts under
the latters jurisdiction are bound to accept, or at least to take
judicial notice of, that rule. This principle has been elucidated
most clearly by the Supreme Court of the United States in a
classic decision:
at
the
U.S.
District
(2) The
United
States
recognized the immunity of
coastal fishing vessels as
far back as the Mexican
War of 1846.
(3) In most recent times,
numerous states issued
specific orders to naval
commanders
concerning
fishing vessels, recognizing
their
exemption
from
seizure unless military operations should make it
necessary.
(4) International law is part
of our law, and must be
ascertained
and
administered by courts of
justice
of
appropriate
jurisdiction, as often as
questions
of
right
depending upon it are duly
presented for their determination. For this purpose,
where there is no treaty
and
no
controlling
executive or legislative act
or judicial decision, resort
must be had to the customs
and usages of civilized
nations; and, as evidence
of these, to the works of
jurists and commentators,
who by years of labor,
research, and experience,
have
made
themselves
peculiarly well acquainted
with the subjects of which
they treat. Such works are
resorted to by judicial
tribunals, not for the
speculations
of
their
authors concerning what
15
partI
Nations
The Law of
131].
vessels,
with
their
implements and supplies,
cargoes
and
crews,
unarmed
and
honestly
pursuing their peaceful
calling of catching and
bringing in fresh fish, are
exempt from capture as
prize of war.
(6) This rule of international
law is one which prize
courts, administering the
law of nations, are bound
to take judicial notice of,
and to give effect to, in the
absence of any treaty or
other public act of their
own government in relation
to the matter.
P.C.I.J., 1927,
The SS Lotus (France v. Turkey), Ser. A, No. 110, 4.
7
U.S. Supreme Court 1895, 159 U.S. 113.