Topic : International law and Municipal law

The relationship between International and Municipal law

Where one state (A) breaches the terms of a treaty in force between it and another state (B), that state (B) may seek to have the courts of the first state (A) enforce any rights available to nationals under the treaty. Such breach will give rise to international legal responsibility on the part of A (with respect to B). owever, even where a state is bound at the international level (for e!ample to pay compensation for breach of a treaty), the domestic courts of the state may refuse to enforce a treaty domestically (as is the position with an unincorporated treaty in "#). $ote% &he rules of incorporation'transformation must be taken into consideration when deciding whether municipal law can be used to enforce international law. (f municipal law is necessary to give effect to the enforcement of a treaty then the rules of incorporation'transformation must be applied. (f no municipal law is necessary then the incorporation'transformation rules are irrelevant because the state will either be bound at the international level, or not. (f the state is bound at the international level, it will remain so regardless of any municipal law problems (i.e., getting courts to enforce it)% Art. )* +, and customary international law.

The US
"nder Art.VI of the US constitution treaties can be -automatically incorporated. into domestic law. &he article makes treaties the -supreme law of the land.. &his means that they will overturn any prior inconsistent law (e!cept for the constitution), and become federal law. &he /ac0uete abana (1233) also shows us that international law is part of the law of the "S as long as there is no treaty, e!ecutive, legislative or 4udicial law to the contrary. owever, the term 5treaty5 has a specific meaning in "S domestic law6referring to international agreements for which the /resident has obtained the advice and consent of )'7rds of the Senate. -,ongressional89!ecutive agreements. re0uire a simply ma4ority approval of both the ouse of :epresentatives and the Senate. As a result, the only form of international agreement that can be concluded without ,ongressional help is the -/residential or Sole 9!ecutive agreement.. owever the ability of "S /residents to enter into such agreements has been strictly controlled6even with respect to the ability to declare war; &he ability of the "S to enter into treaties is limited by its Bill of :ights. (n order to see if a treaty can be part of the domestic law of a state, directly enforceable in its courts, it may be necessary to apply the self8e!ecuting'non8self8e!ecuting test. &hings that should be taken into consideration include% a) &he specificity of the treaty provision <ost of the (nter8American provisions would satisfy this. b) &he intent of a state when becoming a party c) &he general nature of such treaty obligations Since the (nter8American system has international bodies that have been specifically created to enforce treaty commitments, it is unlikely that the court would -read into. these treaties an additional local enforcement mechanism. =r more accurately, it is unlikely that the court will read such an intention into a state.s ratification.

d) &he similarity of the treaty provision to a normal piece of legislation &his would depend upon the provision concerned, but many (nter8American provisions would satisfy this test. Where there is contrary legislation two possibilities arise: 1.) (f the Act is at the federal level, it will overrule any prior federal law including treaty obligations (which only come into force domestically as federal law). ).) (f the Act is passed as lesser legislation, it will be overruled by the higher, federal law of the (nter8 American treaties. (n the "S, customary law can be part of the law of the land. Whether it is automatically incorporated or re0uires transformation is unknown (we did not cover this for the "S).

The UK
&he basic rule regarding treaties in "# law is one re0uiring incorporation. (n other words, there will be no automatic incorporation of treaties into "# domestic law% >(nternational &in ,ouncil ,ase? >&he /arlement Belge ,ase? ><aclaine Watson v. @ept. =f &rade? >A.A. for ,anada v. A.A. for =ntario? "nincorporated treaties are not binding as a matter of domestic law and can only be used for the purposes of interpreting domestic law (whether statutory or common law) when that law is vague or unclear. >:. v. #han (Sultan)? =nly if the domestic legislation is unclear can the ,ourt look at the unincorporated treaty to assist it in its interpretation (for the simple reason that there is a presumption that the "# does not mean to violate its international obligations) >Salomon v. ,omm.s of ,ustoms B 9!cise? >9! /arte Brind? &he recent /rivy ,ouncil case of Cewis v. A.A. of Damaica, may change this position somewhat, as it re0uired Damaican authorities to consider (unincorporated) (nter8American human rights standards before e!ercising the discretionary prerogative of mercy. &he $eville Cewis case effectively allowed the rules created by (and developed under) unincorporated treaties to become part of the common law, and thus to become (through the common law) binding upon domestic courts.

ote
&he Mortensen !. "eters rule% (f there is a conflict between domestic law and international law, courts will enforce the domestic law.