1. INTERNATIONAL LAW & MUNICIPAL LAW Dr Peter D Maynard

2. Expected Learning Outcomes  What are the 2 theories on the relationship between international and municipal law?  What is the effect of custom on municipal law?  Is a decision on international law of 50 years ago necessarily binding on the court today?  What is the effect of unincorporated treaties on municipal law?  Can international law be applied through the back door, i.e., without incorporation by statute?

3. 2 Approaches  International law does not need to be translated into national law. One unified legal system. The act of ratifying an international treaty immediately incorporates that international law into national law.  Under some Constitutions direct incorporation of international obligations into the domestic law occurs on ratification.  In other States direct incorporation occurs only for self executing treaties. e.g., Holland.  International law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts. They are 2 legal systems. e.g., UK, Bahamas MonistDualist

4. Effect of custom on municipal law  Triquet v Bath (1764) 3 Burr. 1478 – UK supports doctrine of incorporation of custom into municipal law.  Parlement Belge (1878-79) 4 P.D. 129 – common law incorporates the rules of customary international law.  West Rand Central Gold Mining Co. v R [1905] 2 K.B. 391 – international law will be acknowledged and applied by municipal tribunals when legitimate occasion arises, but must be so widely accepted that any civilized state would assent to it  Mortensen v Peters, (1906) 8 F. (J.) 93 (Court of Justiciary, Scotland) – Court upheld domestic law that was contrary to international law, upheld statute over custom.

5. No stare decisis  Trendtex Trading Corp. v Central Bank of Nigeria [1977] Q.B. 578 – The majority felt that the courts can recognize a rule of customary international law if it conflicts with an earlier decision. A decision of 40 or 50 years ago on international law is not binding on the court today. International law knows no rule of stare decisis, per Ld Denning. The doctrine of incorporation supercedes the doctrine of precedent.

6. Effect of unincorporated treaties  R v Keyn (1876) 2 Ex. D. 63 – doctrine of incorporation determines when international law is relevant.  Unincorporated treaty has no binding effect in domestic law, Maclaine Watson v Dept of Trade; cannot limit a minister’s discretion, R v Secretary of State for Home Department ex p Brind; and can be referred to only if domestic law is ambiguous, Salomon v Commnrs of Customs and Excise, Boyce and Joseph v R (JCPC)  Prefer the interpretation consistent with international legal obligations, as it presumed that Parliament does not intend to violate international legal obligations, ibid.

7. International law through the back door  Lewis v AG of Jamaica [2001] 2 A.C. 50 (JCPC) – international law re human rights took precedence over internal law. The mercy committee had to wait for the report of the Inter American Commission on Human Rights before considering the exercise of the prerogative of mercy.  AG v Boyce and Joseph (2006) CCJ Appeal No. CV 2 of 2006, BB Civ Appeal No. 29 of 2004 (November 8, 2006) – international law applied through the back door

8. US and Canada  Head Money Cases: Edye v Robertson, 112 U.S. 580 (1884) – US Constitution treats treaties/conventions as supreme law of the land BUT only in so far as they do not take superiority over an Act of Congress  Sei Fuji v California, 242 P. 2d; 19 ILR 312 (1952) – “a treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing”  AG for Canada v AG for Ontario [1937] A.C. 326 – “making a treaty is an executive act, but its performance requires legislative action”

9. What have you learned?  Monists regard international law and domestic law as one unified system.  Dualists do not. For them, international law has to be translated into domestic law to take effect.  Courts usually take the practical approach of upholding statutes over custom.  Treaties are incorporated into domestic law by appropriate legislation (dualist).  Unincorporated treaties, notably re human rights, may be incorporated into domestic law without additional legislation.