Topic 4 — International Law and Domestic Law (DL) General Principles
• Dualist theory, IL does not overrule DL; it has to be transformed to be received into DL
• IL must be implemented in DL. Several variants
• (a) only legislation may implement;
• (b) either legislation or court decisions may implement
• Monist theory: they form part of one single legal system, and operate on the same plane. According to monist theory, IL is automatically incorporated into DL, and prevails over inconsistent DL
• IL automatically part of DL. Several variants:
• (a) Courts to apply IL unless inconsistent with statute (i.e. apply over common law);
• (b) Courts to apply IL unless inconsistent with statue or common law
Domestic Law → International Law
• Previous we established that DL can be a source of IL.
• (1) DL can serve as evidence of state practice and opinio juris for the purposes of generating a CIL: ICJ Statute, Article 38(1)(b)
• (2) DL can also be relevant as evidence of general principles of law recognised by civilised nations: ICJ Statute, Article 38(1)(c)
1. Domestic law as a source of PIL as evidence of custom and/or general principles of law a. Barcelona Traction, Light and Power Company Limited Case (Belgium v Spain) (1970):
i. Issue: Is the national law concept of ‘the company’ applicable in IL?
ii. Held: IL has had to recognise the corporate entity as an institution created by states, but note that it does not amount to making rules of IL dependent upon categories of DL
iii. If an international rule is lacking or ill-developed, international tribunals may invoke national laws in search of ‘general principles’
2. IL may recognise institutions of domestic law that have an important/extensive role in IL a. Brazilian Loans Case (France v Brazil) (1929):
i. Decision: Dispute between France and Brazil — ICJ applied Brazilian law on the contract between the Brazilian government and the French nationals
ii. Action: The ICJ can even select the interpretation in most conformity with the law to make a call, because disregarding domestic jurisprudence would:
1) Negative Reason (1) would not be in conformity with its function
2) Negative Reason (2): If international court was obliged to disregard decisions of domestic courts, it might apply rules other than those that have actually been applied historically, 3) Negative Reason (3): Contrary to the whole theory on which application of DL is based 3. May not invoke absent/inconsistent domestic law as justification for failing to meet IL obligations
a. Articles 27 and 46 of the Vienna Conventions reflect CIL in providing that a State cannot rely on its national law as a justification for a breach in its international obligations, UNLESS the violation was manifest and concerned a law of internal fundamental importance
i. This is limited to treaties
b. ILC Declaration on the Rights and Duties of States, Article 13: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of IL, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”
i. This is any international obligation (whether treaty, customary IL, etc.) c. Alabama Claims Arbitration (1872):
i. Facts: The US successfully claimed damages from UK for breach of the latter’s obligations as a neutral power during the American Civil War. In its defence, Britain claimed that it had not acted contrary to its IL obligations because there was no domestic legislation which allowed the Govt to prevent the fitting out of the Confederate cruisers
ii. Held: The absence of legislation is no defence or a failure in due diligence; UK was liable to pay damages for the damage inflicted by these vehicles
d. Sandline Arbitration (1998): PNG could not rely on internal law to support plea that an international contract was invalid
i. Facts: Dispute between Sandline (Private Corporation) and Papua New Guinea (State). The Arbitral Tribunal found that the law governing the agreement was international law and not the laws of England, notwithstanding the fact that the agreement had expressly stipulated that the laws of England should apply to the agreement.
ii. Implication: The decision by Justice Ambrose strongly supports the proposition that where parties agree to an arbitration agreement with a clause that (1) includes a foreign choice of law and (2) provides for the arbitration to be conducted in Australia applying Australian procedural law, then any appeal from an arbitral tribunal to an Australian court would be extremely difficult.
Despite PNG's attempts to demonstrate that the law of England in relation to illegality was identical to the law in Queensland, this was still not sufficient for a finding by the Arbitral Tribunal in relation to illegality amounting to a question of law.
Proof of Law in National and International Court
1. In an Australian court, PIL, like Australian law, cannot be proved law by expert evidence — ACCC v PT Garuda (No 9) [2013] FCA 323 per Perram J
a. ‘Opinion evidence is not receivable on an issue of DL because the law is not a matter for proof or disproof. It is for this reason, as pointed out in Cross on Evidence… that a judge is not obliged to accept a proposition of law agreed upon by the parties… Does a similar principle apply to IL?
Despite authority to this effect being scarce, it seems that the answer is that it does.’
2. In an international court (e.g. the ICJ), DL may be proved by evidence or by court’s own research — Brazilian Loans Case (France v Brazil) (1929)
Customary IL → DL (Rejection of incorporation, BUT unclear transformation)
1. In Australia (contrary to the UK situation: Trendtex Trading [1977]) automatic incorporation of CIL rejected, however there is no clear acceptance of the transformation approach
a. The ‘soft’ transformation approach not clearly endorsed (i.e. the notion that custom may be adopted by court, not exclusively by parliament)
2. IL is legitimate source but cannot be automatically incorporated: Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1:
a. “The common law does not necessarily conform with IL, but IL is a legitimate and important influence on the development of the common law, especially when IL declares the existence of universal human rights.”
b. Brennan J recognises that contemporary principles of international human rights law suggests that terra nullius is incompatible with the recognised rights of indigenous people to land and fundamental principles of human rights
c. IL important in common law: ”A common law doctrine founded on unjust discrimination in the enjoyment of a civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the… scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.” Brennan J in Mabo v Queensland
a. United Kingdom: Incorporation approach for CIL except for crime (contrary to Australia) i. Trendtex: UK accepts the incorporation doctrine as the correct one for CIL
1) Facts: Central Bank of Nigeria. Plaintiff claimed against Central Bank for payments.
Companies delivering cement weren’t paid. Nigeria claimed that it was a department and immune from law suit. The Court turned to IL on sovereign immunity and its status in English law
2) Issue: Does the bank of Nigeria have sovereign immunity
3) Courts found that the doctrine of incorporation was the correct one, otherwise, the courts could never recognise in the rules of IL.
3. Suggestive CIL is transformed into DL but unclear: Chow Hung Ching v R (1948)
a. Latham CJ: “IL is not as such part of the law of Australia, but a universally recognised principle of IL would be applied by our courts.” Latham suggests that you can have transformation in some circumstances
b. Dixon J: “the theory of Blackstone (automatic incorporation) is ‘regarded as without foundation’ and the ‘true view’ is that of Brierly ‘that IL is not part, but is one of the sources’ of Australian law.
i. i.e. Judges decide whether or not to import the law. IL does not automatically apply, but the courts have a say in deciding whether or not it does
• Facts: Chinese army labourers convicted of assault in PNG (then under Australian UN mandate); did they enjoy immunity because ‘visited armed forces’?
• Held: that had no immunity applied because they were not members of the military forces of China
4. Australia to develop common law in accordance with CIL — Habib v Commonwealth of Australia a. Principle: The Court held that the Cth could not rely on the common law act of state doctrine to
have the applicant’s claims dismissed. Black CJ and Jagot J held that the doctrine does not apply where grave violations of international human rights law are alleged. Doctrine does not preclude investigation of govt officials acting allegedly outside the scope of their authority.
i. Courts can disregard the common law, and instead transforming CIL into domestic common law.
b. Facts: Applicant was in detention overseas, allegedly subjected to inhumane treatment. Argued that Aus officials knew it was happening and aided and abetted his torture overseas. Aus govt argued that claim should be precluded by the application of the common law act of state doctrine, which means that States will not sit in judgment on the acts of govt of another state done within its own territory c. Jagot J: Concluded that the development of the common law did not support the application of the
doctrine where grave breaches of human rights were alleged. Her Honour was of the opinion that weight of the authorities did not allow alleged acts of torture to escape judicial review unless there was a valid claim for sovereign immunity.
d. Black CJ: Common law is to develop consistently with clear international prohibition against torture.
State doctrine could not apply where serious international human rights violations are alleged.
e. Perram J: Doctrine could not preclude judiciary from scrutinising the limits of government power and the act of state doctrine did not apply where the Court was asked to review conduct of government officials that was allegedly outside the scope of their authority.
