Part I Preliminary topics, 3 The relations of international and national law
James Crawford SC, FBA
- Relationship of international law & host state law — Dualism — General principles of international law
The relationship between international and national law1 is often presented as a clash at a level of high theory, usually between ‘dualism’ and ‘monism’.2 Dualism emphasizes the distinct and independent character of the international and national legal systems.3 International law is seen as a law between states whereas national law applies within a state, regulating the relations of its citizens with each other and with that state. Neither legal order has the power to create or alter rules of the other. When an international law rule applies, this is because a rule of the national legal system so provides. In the case of a conflict between international law and national law, the dualist would assume that a national court would apply national law, or at least that it is for the national system to decide which rule is to prevail.
Monism postulates that national and international law form one single legal order, or at least a number of interlocking orders which should be presumed to be coherent and consistent. On that basis, international law can be applied directly within the national legal order. This position is represented by jurists whose views diverge in significant respects. Hersch Lauterpacht was a forceful exponent of a version of monism; he emphasized that individuals are the ultimate subjects of international law, representing both the justification and moral limit of the legal order.4 The state (p. 46) is disliked as an abstraction and distrusted as a vehicle for maintaining human rights. International law is seen as the best available moderator of human affairs, and also as a condition of the legal existence of states and therefore of the national legal systems.5
Hans Kelsen developed monist principles on the basis of formal methods of analysis dependent on a theory of knowledge.6 According to Kelsen, monism is scientifically established if international and national law are part of the same system of norms receiving their validity and content by an intellectual operation involving the assumption of a single basic norm (Grundnorm). Only that assumption makes sense of the shared normativity of law. This basic norm he formulates, with nice circularity, as follows: ‘The states ought to behave as they have customarily behaved.’7 International law, in turn, contains a principle of effectiveness which allows revolution to be a law-creating fact and accepts as legitimate the historically first legislators of a state. This, as if by delegation, provides the basic norm of national legal orders; the whole legal ordering of humanity is at once presupposed and integrated: ‘Since the basic norms of the national legal orders are determined by a norm of international law, they are basic norms only in a relative sense. It is the basic norm of the international legal order which is the ultimate reason of validity of the national legal orders, too.’8
Thus, Kelsen developed a monist theory of the relation between international and national law.9 Law is a hierarchical system whereby each legal norm derives its validity from a higher norm. This chain of validity can be traced to the Grundnorm, which is not a norm of positive law but rather a ‘hypothesis of juristic thinking’.10 International and national law form a single system of norms because (p. 47) they receive their validity from the same source:11 the Grundnorm evidently has a lot to answer for. But Kelsen’s theory is complicated in that he considered it equally possible that the relationship between legal orders could be conceived on the basis of the primacy of national law rather than of international law.12 The choice between these alternatives is to be made on political rather than legal grounds.13
Faced with this apparent impasse, it seems natural to seek to escape from the dichotomy of monism and dualism. Above all, neither theory offers an adequate account of the practice of international and national courts, whose role in articulating the positions of the various legal systems is crucial.14 Fitzmaurice attempted to bypass the debate by arguing that there was no common field of operation: the two systems do not come into conflict as systems since they work in different spheres, each supreme in its own field.15 However, there could be a conflict of obligations, an inability of the state on the domestic plane to act in the manner required by international law in some respect: the consequence of this will not be the invalidity of state law but the responsibility of the state on the international plane.16
In considering these and later contributions to the debate about the relations between legal systems, it seems desirable to leave behind the glacial uplands of juristic abstraction.17 In fact, legal systems are experienced by those who work within them as having relative autonomy (how much autonomy depends on the power and disposition of each system, and varies over time). The only theory which can adequately account for that fact is some form of pluralism.18 Each legal system has, almost by definition, its own approach to the others (though in practice there is much borrowing). To talk of ‘national law’ is to generalize; but as soon as one asks what approach a given system (international law, English law, French law …) takes to another, the mist clears: it is possible to state the position with clarity and to understand that each system reserves to itself the authority to determine for the time being the extent and terms of interpenetration of laws and related issues of the separation of powers.
(A) International law’s approach to national law
(i) In general
Here the position is not in doubt.19 A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for a breach of its obligations under international law.20 This principle is reflected in Article 3 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts:
The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.21
Arbitral tribunals,22 the Permanent Court,23 and the International Court24 have consistently endorsed this position. It goes back to Alabama Claims,25 where the US recovered damages from Great Britain for breach of its obligations as a neutral during the Civil War. The absence of legislation to prevent the fitting out of commerce raiders in British ports or to stop them leaving port to join the Confederate forces provided no defence to the claim. In Free Zones, the Permanent Court observed: ‘… it is certain that France cannot rely on her own legislation to limit the scope of her international obligations …’26 The same principle applies where the provisions of a state’s constitution are relied upon. In the words of the Permanent Court: ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’.27
An associated question is whether the mere enactment of legislation can give rise to international responsibility, or whether an obligation is only breached when the (p. 49) state implements that legislation. There is a general duty to bring national law into conformity with obligations under international law,28 but what this entails depends on the obligation in question. Normally, a failure to bring about such conformity is not in itself a breach of international law; that arises only when the state concerned fails to observe its obligations on a specific occasion.29 But in some circumstances, legislation (or its absence) could of itself constitute a breach of an international obligation, for example where a state is required to prohibit certain conduct or to enact a uniform law.
(ii) National laws as ‘facts’ before international tribunals
In Certain German Interests in Polish Upper Silesia, the Permanent Court observed:
From the standpoint of International Law and of the Court which is its organ, national laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.30
Thus, a decision of a national court or a legislative measure may constitute evidence of a breach of a treaty or of customary international law.31 However, the general proposition that international tribunals take account of national laws only as facts ‘is, at most … debatable’.32
The concept of national law as ‘merely facts’ has at least six distinct aspects.
(1) National law may itself constitute, or be evidence of, conduct in violation of a rule of treaty or customary law.
(2) National law may be part of the ‘applicable law’ either governing the basis of a claim or more commonly governing a particular issue.
(3) Whereas the principle jura novit curia (the court knows the law) applies to international law, it does not apply to matters of national law. International tribunals will generally require proof of national law, although they may also (subject to due process constraints) undertake their own researches.33
(4) When called upon to apply national law, an international tribunal should seek to apply that law as it would be applied in the state concerned.34 It is for each state, in the (p. 50) first instance, to interpret its own laws.35 International tribunals are not courts of appeal and they do not have the authority to substitute their own interpretation of national law for that of the national authorities, especially when that interpretation is given by the highest national courts. In many situations, an international tribunal must simply take note of the outcome of a domestic decision and then deal with its international implications.36 It will only be in exceptional circumstances that an international tribunal will depart from the construction adopted by a national authority of its own law, such as where a manifestly incorrect interpretation is put forward in the context of a pending case.37
(5) International tribunals cannot declare the unconstitutionality or invalidity of rules of national law as such.38 Only if it is transparently clear that a national law would be treated as unconstitutional or invalid by the national courts should an international tribunal follow suit.
(6) The proposition that an international tribunal does not interpret national law ‘as such’ is open to question.39 When it is called on to apply rules of national law, an international tribunal will interpret and apply domestic rules as such.40 This may occur in a variety of circumstances. First, there is the case of renvoi: in Lighthouses, for example, the special agreement required the Court to decide if the contracts had been ‘duly entered into’ under Ottoman law.41 Or international law may designate a system of domestic law as the applicable law in respect of some claim or transaction.42 Where relevant issues (whether classified as ‘facts’ or otherwise) require investigation of national law, the Court has made the necessary findings.
Cases where a tribunal dealing with issues of international law has to examine the national law of one or more states are by no means exceptional.43 The spheres of competence claimed by states, represented by territory, jurisdiction, and nationality of individuals and legal persons, are delimited by legislation and judicial and administrative decisions. International law sets the limits of such competence, but in order to decide whether particular acts are in breach of obligations under treaties or customary law, the Court has had to examine national law relating to a wide range of topics, including expropriation,44 fishing limits,45 nationality,46 guardianship and welfare of infants,47 the rights of shareholders in respect of damage suffered by corporations,48 and the arbitrary arrest and expulsion of aliens.49 National law is very frequently implicated in cases concerning individuals, including those relating to the protection of human rights and the exhaustion of local remedies.
Many treaties contain provisions referring directly to national law50 or employing concepts which by implication are to be understood in the context of a particular national law.51 When treaties refer to ‘nationals’ of the contracting parties, the presumption is that the term connotes persons having that status under the internal law of one of the parties. Similarly, treaties often involve references to legal interests of individuals and corporations existing within the cadre of a given national law. Treaties having as their object the creation and maintenance of certain standards of treatment of minority groups or aliens may refer to a national law as a method of describing the status to be created and protected.52 The protection of rights may be stipulated as being ‘without discrimination’ or as ‘national treatment’ for the categories concerned.53
On occasion, an international tribunal may be faced with the task of deciding issues solely on the basis of national law. Serbian Loans54 concerned a dispute between the French bondholders of certain Serbian loans and the Serb-Croat-Slovene government, (p. 52) the former demanding loan service on a gold basis, the latter holding that payment in French paper currency was permissible. The French government took up the case of the French bondholders and the dispute was submitted to the Permanent Court. The Court emphasized its duty to exercise jurisdiction duly conferred by agreement, in the absence of provision to the contrary in the Statute.55 On the merits, the Court held that the substance of the debt and the validity of the clause defining the obligation of the debtor state were governed by Serbian law, but, with respect to the method of payment, the law applicable was that of the place of payment, in this case French law.
(B) International law before national courts: General considerations
(i) Establishing international law before national courts
An initial issue is whether the jurisdiction considers international law to be ‘part of’ (in the sense of generally available to) national law, a question that is often constitutional in character, and which may be answered differently for customary law and treaties.56 Thus, the 1949 German Grundgesetz provides in Article 25 that ‘[t]he general rules of public international law shall be an integral part of federal law.’ Where such a position is adopted, a national court will go about establishing the content of international law as a matter of legal argument.57 Once a court has ascertained that there are no bars within its own legal system to applying the rules of international law or provisions of a treaty, the rules are accepted as rules of law and are not required to be established by evidence, as in the case of matters of fact and foreign law.58 But in the case of international law, this process of judicial notice has a special character. In the first place, there is a problem involved in finding reliable information of international law, especially customary law, in the absence of resort to expert witnesses. Secondly, issues of public policy and difficulties of obtaining evidence on larger issues of state relations combine in some systems to produce a procedure whereby the executive may be consulted on certain questions of mixed law and fact, for example the existence of a state of war or the status of an entity claiming sovereign immunity.
Thus, in France the Minister of Foreign Affairs may give an interpretation of a treaty to a court, which may then be relied upon in later cases involving the same provision.59 On the other hand, a national court may itself make a full investigation of the legal sources,60 including treaties and state practice. Reference may also be made to decisions (p. 53) of international tribunals61 and the work of the ILC.62 International law is increasingly finding its way into national courts, and judges are increasingly finding themselves called upon to interpret and apply it—or at least to be aware of its implications.
(ii) International law as the applicable law in national courts
Once a national court has determined that international law is in some way relevant and applicable to a matter before it, it falls to the court to determine how that law is to sit alongside any national law that may also be applicable. Again, the approach of a national court to international law will be largely determined by the rules of the jurisdiction in question. But certain issues common to many or all jurisdictions may be identified.
(1) Courts may be called upon to adjudicate conflicts between a municipal law on the one hand and a rule of customary international law on the other. Many municipal systems now appear to have in one way or another accepted customary international law as ‘the law of the land’, even where no constitutional provision is made,63 but questions remain as to how it fits within the internal hierarchy of a national system. As a general (but by no means absolute) rule, a statute will prevail over a rule of customary international law if no reconciliation is possible by way of interpretation.64
(2) The question also arises with respect to treaties, but will take on a more overtly constitutional flavour. ‘Monist’ systems may expressly provide that duly signed and ratified treaties take precedence over national legislation.65 In other (‘dualist’) systems where the conclusion of a treaty is an executive act, it will be for the legislature to implement the treaty as part of national law—insofar as this may be required. In such a system, the treaty is applied by the courts as mediated by the legislation, and legislation will prevail, again unless the issue can be resolved by interpretation.66
(3) When applying international law rules, municipal courts may find it necessary to develop the law, notably where it is unclear or uncertain.67 This will include (p. 54) consideration of how the international rule is applicable in a domestic context, a process which has been notable, for example, in the field of state immunity.68 The question is particularly vexed in the US due to the so far unique provisions of the Alien Tort Statute69 and subsequent efforts to define its scope.70
(4) Even in monist systems, the court may need to determine the extent to which a rule of international law may be directly applied. For example, a treaty (even if duly ratified and approved in accordance with constitutional processes) may be held ‘non-self-executing’, that is to say, inapplicable without further specification or definition by the legislature.71
(5) A further question is the extent to which the executive may intervene in the court’s application of international law. One consideration may be the need for the judiciary and the executive to speak with one voice with respect to the foreign policy of the country in question. Thus, when considering issues such as the recognition of states and governments, state immunity, and diplomatic immunity the courts may accept direction from the executive.72 Caution must be exercised, however, particularly in the European context, with the European Court of Human Rights holding that the practice in extreme forms is incompatible with the right of access to ‘an independent and impartial tribunal’.73 There, the practice scrutinized was the French procedure of referring preliminary questions on matters of treaty interpretation to the Minister for Foreign Affairs, and treating any opinion given as binding.74 The revised French practice does not attribute binding effect to such opinions and indeed does not require them to be given at all.75(p. 55)
(6) A court may be called upon under the rules of private international law to apply foreign law. If it is alleged that the applicable law is in conflict with international law, the court may be required to determine whether the act or law of a foreign state is contrary to its international obligations. In many jurisdictions—notably in the US—such issues have given rise to the ‘act of state’ doctrine, whereby a court will, as an organ of a sovereign, refuse to pass judgement on the acts of another, formally equal, sovereign. The scope of the doctrine varies from one jurisdiction to another.
(7) Finally, the court, confronted with an intricate issue of international law, may simply concede that it is beyond its capacity to decide, that is, is non-justiciable. As will be seen, the doctrine exists in England and in other common law jurisdictions.
A further suite of issues emerges with respect to federal states:76 the capacity of entities other than the federal government to deal with questions of foreign affairs, the place of international law in the components of the federal system,77 and the capacity of courts other than those at a federal level to apply international law.
(C) Res judicata as between international and national law
(i) National res judicata before international courts
From a formal point of view, res judicata is a general principle within the meaning of Article 38(1)(c) of the Statute,78 applied in tandem by international and national courts.79 But there is no effect of res judicata from the decision of a national court so far as an international jurisdiction is concerned. Even if the subject matter may be substantially the same, the parties may well not be, at least in the context of diplomatic protection and possibly outside that context also.80 (p. 56) Other considerations also play a role, not least the principle that international law is (in its own terms) supreme. But an international tribunal may be bound by its constituent instrument to accept certain categories of national decisions as conclusive of particular issues.81
Some international tribunals afford natural and juridical persons standing against states, including in respect of decisions of state courts. For example, the European Court of Human Rights functions as a court of final resort on human rights issues; it is only accessible once local remedies have been exhausted and does not re-examine any questions of fact already dealt with by a municipal court.82 In the case of investor–state arbitration tribunals, the default position is that the decisions of national court create no res judicata insofar as the work of the tribunal is concerned,83 but the parties to the bilateral or multilateral treaty granting the tribunal jurisdiction may incorporate procedural roadblocks into the bargain, such as the so-called ‘fork in the road’ clause.84 Such a clause requires the claimant to elect investor–state arbitration or litigation before the courts of the host state of the investment as its preferred method of dispute resolution. Once an election is made, other ways of bringing the original claim are closed to the claimant.
(ii) International res judicata before national courts
In principle, decisions by organs of international organizations are not binding on national courts without the cooperation of the national legal system,85 which may adopt a broad constitutional provision for ‘automatic’ incorporation of treaty norms or require specific acts of incorporation or implementation. On the other side of the equation, however, municipal courts may seek to circumvent the finality of such decisions without engaging the question of res judicata through interpretive legerdemain. In recent times, this has been a feature of US practice, which links the effect of a judgment to the status of the relevant international court or tribunal’s constitutive instrument within municipal law.86
(p. 57) Leaving aside such arguments, a decision of the International Court, even one concerning substantially the same issues as those before a national court, does not of itself create a res judicata for the latter.87 However, it does not follow that a national court should not recognize the validity of the judgment of an international tribunal of manifest competence and authority, at least for certain purposes.88 For this reason, states often accord res judicata effect to international and domestic arbitral awards.89 On the one hand, this is desirable as a matter of common sense, and the arguments from a policy perspective are well known; parties to litigation are at a certain point in time entitled to draw a line under a dispute and be free of continued legal harassment. On the other, it may be the subject of a treaty obligation, for example under the New York Convention90 or the International Centre for the Settlement of Investment Disputes (ICSID) Convention.91 Outside those areas with specific treaty obligations, state practice is extremely variable, with a number of countries not affording res judicata effect to foreign judgments,92 or even those judgments arising from a different federal unit of the same country.93
(iii) Res judicata and third parties
In international law, res judicata includes issue estoppel, but probably does not extend to the US doctrine of collateral estoppel (binding upon third parties).94 But the decisions of an international court or tribunal may carry evidentiary weight even vis-à-vis third parties. For example, national courts, in dealing with cases of war crimes and issues arising from belligerent occupation, the validity of acts of administration, of requisition and of transactions conducted in occupation currency have relied upon the findings of the International Military Tribunals at Nuremberg and Tokyo as evidence, even conclusive evidence, of the illegality of the war which resulted in the occupations.95
(p. 58) Quite aside from this, the legal reasoning employed by international tribunals may carry weight. In Mara’abe v Prime Minister of Israel, the Supreme Court of Israel found that the International Court’s Wall advisory opinion96 did not constitute res judicata but that the Court’s interpretation of international law (as opposed to its factual determinations) should be given ‘full appropriate weight’.97
(A) Development of the common law approach
The common law was initially seen, and saw itself, as the law of the land—of the kingdom of England.98 It was applied by the common law courts at Westminster and set over against the civil law which governed maritime matters, foreign trade, and also, given its links to the jus gentium, the relations of princes and republics. The latter law was practised by the civilians before the civil law courts such as the Court of Admiralty, and before the Council. The Council’s advice on the law of nations came from civilian-trained lawyers not from the common lawyers.99
The situation changed to some extent in the eighteenth century, following the abolition of the conciliar courts at the Restoration and the opening up to the common law courts of the field of international commercial litigation. Part of that opening was a greater willingness to be influenced by foreign and civil law, a trend personified by Lord Mansfield, who first recorded the principle of ‘incorporation’, that is, that international law was ‘part of the law of England’, a tradition he attributed to Lord Talbot and handed on to Blackstone.100 What the Court of Admiralty in its prize jurisdiction saw as a simple matter of applicable law became for the common law courts a deliberate choice.101 But this open-minded approach was qualified in various ways: the supremacy of Parliament meant that treaties (the conclusion of which was a royal prerogative) were not part of English law, and the old role of the Council in matters of external relations left a prototype of the act of state doctrine102 together with a deference to executive authority in matters of the foreign prerogative (notably recognition). The overall result was eclectic, reflecting a practical (p. 59) rather than theoretical policy of the courts. In the post-Judicature Act period (post-1875) there was much by way of practical development, but the essential pattern has not changed. It is necessary to take the components in turn, beginning with the most straightforward.
(B) Treaties in English law
(i) Unincorporated treaties
In England,103 the conclusion and ratification of treaties are within the prerogative of the Crown, and if a transformation doctrine were not applied, the Crown could legislate for the subject without parliamentary consent,104 in violation of the basal notion of parliamentary sovereignty.105 The rule does not apply in the very rare cases where the Crown’s prerogative can directly extend or contract jurisdiction without the need for legislation.106
Thus, as a strongly dualist system, English law will not ordinarily permit unimplemented treaties to be given legal effect by the courts.107 A concise statement of this rule was provided by the Privy Council in Thomas v Baptiste:
Their Lordships recognise the constitutional importance of the principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. The making of a treaty … is an act of the executive government, not of the legislature. It follows that the terms of a treaty cannot effect any alteration to domestic law or deprive the subject of existing legal rights unless and until enacted into domestic law by or under authority of the legislature. When so enacted, the courts give effect to the domestic legislation, not to the terms of the treaty.108
(p. 60) Thus, unimplemented treaties cannot create enforceable rights nor deprive individuals of legal rights previously bestowed; this is known as the principle of no direct effect.109 They similarly cannot prevail over statutes, are not ordinarily contracts capable of enforcement in domestic courts, and their infringement by the UK is domestically without legal effect.110 Neither do decisions by international courts and tribunals which determine the UK to be in breach of unimplemented treaty obligations have any domestic effect.111
(ii) Incorporated treaties
Once a treaty is implemented by Parliament, the resulting legislation forms part of UK law and is applicable by the courts as so implemented.112 Accordingly, there is no distinction in the law of the UK between self-executing and non-self-executing treaties; all treaties may be classified as non-self-executing as all require legislative action to become law. An apparent exception to this rule arises in the case of treaties concluded by the institutions of the European Union, with the Court of Justice holding these to be directly enforceable within member states as part of the acquis communautaire. But in UK law, EU treaties have this effect because of the relevant statute, which will be repealed on the UK’s withdrawal from the EU.113
Once enacted, the statute implementing the treaty will function as any other Act of Parliament. Thus, for example, the words of a subsequent Act of Parliament will prevail over the provisions of a prior treaty in the case of clear inconsistency between the two.114
Legislation to give effect in domestic law to treaty provisions may take various forms. A statute may directly enact the provisions of the international instrument, which will be set out as a schedule to the Act.115 It may employ its own substantive provisions to give effect to a treaty, the text of which is not itself enacted. It may be that the enacting legislation makes no specific reference to the treaty in question, though there is extrinsic evidence to show that the statute was intended to give effect to it.116 (p. 61) The result is a balancing act that requires the court to scrutinize the strength of the relationship between the enacting statute and its parent treaty, and determines the strength of the latter as an interpretative tool.117
(iii) Treaties and the interpretation of statutes
Questions surrounding the interpretation of treaties and statutes in English law can generally be divided into two categories:118 the interpretation of enabling instruments and the interpretation of other legislation in the light of treaties entered into, both incorporated and unincorporated. As to the former, it is to be remembered that the primary object of interpretation is the implementing statute, and only at one remove the treaty which implements or incorporates it.119 Accordingly, although international courts and tribunals may rule on the interpretation of a treaty, their rulings are not binding.120
On the other hand, the interpretation of treaty provisions is a matter of law. Unlike in some countries, the courts do not seek binding interpretations of treaties from the executive.121 They will apply international rules of treaty interpretation, as reflected in the Vienna Convention on the Law of Treaties,122 rather than the domestic canons of statutory interpretation (though these are less different than they used to be).123 Furthermore, in the interests of coherent interpretation between states parties to the relevant agreement, the decisions of other domestic tribunals on the interpretation of treaties are taken into account.124
(p. 62) Difficulties may arise where the implementing statute is ambiguous on its face as to the extent to which it implements a treaty, or fails to mention the treaty entirely. But where it is clear that Parliament intended to implement a treaty through the legislation, the terms of the legislation are to be construed if possible so as to conform to the treaty.125
More generally, as noted by Diplock LJ in Salomon: ‘Parliament does not intend to act in breach of international law, including therein specific treaty obligations.’126 This presumption applies to unincorporated treaties as much as incorporated ones,127 but it only applies to legislation enacted after a treaty has been signed or ratified.128 On the other hand, it will apply even where there is no link between the treaty and the legislation in question.129 In addition to legislation, the presumption may also apply to other instruments or guidelines given domestic effect.130
The presumption itself will only act as an aid to interpretation where the statutory provision is open to interpretation in that it is not clear on its face.131 In Ex p Brind, Lord Bridge, having regard to the then-unimplemented European Convention for the Protection of Human Rights, said:
[I]n construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes.132
The presumption in favour of interpreting English law in a way which does not place the UK in breach of an international obligation applies not only to statutes but also to the common law.133 Use may be made of unincorporated treaties particularly where the common law is uncertain or developing.134 The English courts have taken into account treaty-based standards concerning human rights in order to resolve issues of common law, including the legality of telephone tapping,135 the offence of criminal libel,136 contempt of court,137 and freedom of association.138 This development is not confined to human rights treaties: Alcom Ltd v Republic of Colombia, for example, involved reference to general international law for the purposes of statutory interpretation in the context of state immunity.139
(C) Customary international law
It has become received wisdom that the common law approach to customary international law140 is that of ‘incorporation’,141 under which customary rules are to be considered ‘part of the law of the land’ provided they are not inconsistent with Acts of Parliament. The following statement by Lord Denning MR in Trendtex Trading Corp v Central Bank of Nigeria is usually cited in support of the proposition:
Seeing that the rules of international law have changed—and do change—and that the courts have given effect to the changes without any Act of Parliament, it follows … inexorably that the rules of international law, as existing from time to time, do form part of English law.142
(p. 64) But according to Lord Wilberforce, it may be wise to ‘avoid commitment to more of the admired judgment of Lord Denning MR than is necessary’.143 The position in England is not that custom forms part of the common law (how can foreign states of whatever legal tradition make the common law?), but that it is a source of English law that the courts may draw upon as required.144
As Lord Bingham said in R v Jones (Margaret):
The appellants contended that the law of nations in its full extent is part of the law of England and Wales. The Crown did not challenge the general truth of this proposition, for which there is indeed old and high authority … I would for my part hesitate … to accept this proposition in quite the unqualified terms in which it has often been stated. There seems to be truth in Brierly’s contention … that international law is not a part, but is one of the sources, of English law.145
Similarly Lloyd-Jones LJ put it in the following terms:
[I]t is not possible to make sweeping deductions from such broad statements of principle as the relationship between customary international law and the common law in this jurisdiction is far more complex. It seems preferable to regard customary international law not as a part but as a source of the common law on which national judges may draw … As part of this process they will have to consider whether any impediments or bars to giving effect to customary international law may exist as a result of domestic constitutional principles. Moreover … it appears that judges in this jurisdiction may face a policy issue as to whether to recognise and enforce a rule of customary international law. However, given the generally beneficent character of international law the presumption should be in favour of its application.146
In short, the relationship of custom and the common law is more nuanced than either the doctrines of incorporation or transformation would suggest.147
(ii) The process and limits of ‘incorporation’
It is possible to discern a broad process in the way the common law adopts customary international law. There is an initial question of or akin to choice of law: is this a subject matter on which international law has something to say, and which it allows (or requires) national courts to say. If (as with foreign state immunity) the answer to both questions is yes, there is a second, constitutional question: is this an area where the common law courts retain law-making power or (as with substantive criminal (p. 65) law) not?148 Where it is appropriate to consider norms of international law, rather than the law of the forum or a foreign law, then the courts will take judicial notice of the applicable rules, whereas formal evidence is required of foreign (national) law.
However, the courts still have to ascertain the existence of the rules of international law and their effect within the national sphere: the latter task is a matter on which the rules of international law may provide limited guidance. Case law suggests that four considerations are relevant to the question of incorporation.149
(1) The first question is whether the customary international law rule is susceptible to domestic application.150 For example, is the rule in question of a strictly interstate character, or does it implicate the rights of private parties? The former may be difficult to restructure as a norm within a domestic legal system. In the case of the latter, individual rights may be more readily transposed.151 Some courts have identified further limits that might be imposed on such an attempted transposition, based not on amenability for adoption, but on the character of the norm. In Al-Saadoon, Laws LJ said:
[T]he … proposition that the customary rule may be sued on as a cause of action in the English courts is perhaps not so clear cut. It would of course have to be shown that the rule did not conflict with any provision of English domestic law … I apprehend the rule would also have to possess the status of jus cogens erga omnes …152
But whilst ‘incorporation’ as conceived here has existed since the eighteenth century, the concept of peremptory norms is much more recent. The combination of the two is ahistorical—but the insight that certain norms may imperatively call for implementation is a valuable one. Something similar may have been implied by Justice Souter’s dictum for the Supreme Court in Sosa that norms of international law, to be given direct effect under the Alien Tort Statute, have to be ‘specific, universal, and obligatory’ (although Sosa concerned statutory not common law incorporation).153
(2) The next question is whether the proposed common law rule is contradicted by any constitutional principle.154 Thus, in R v Jones (Margaret), the issue was whether the crime of aggression in customary international law could be considered part of the law of England. (p. 66) Lord Bingham said that in order for a customary norm to be translated to the common law, it must conform to the constitution: ‘customary international law is applicable in the English courts only where the constitution permits’.155 As the constitution requires that only Parliament could be responsible for the creation of crimes in English law,156 aggression could not be considered an element of the common law but was a matter for legislation.157
Within the consideration of constitutionality and custom is the principle that the common law is inferior to statute, a concept flowing directly from the doctrine of parliamentary sovereignty. Thus, a customary norm may only be transposed into the common law to the extent that it does not conflict with an Act of Parliament. In Chung Chi Cheung v R, Lord Atkin said:
The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue, they seek to ascertain the relevant rule, 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 …158
Thus, in Al-Adsani v Government of Kuwait, Mantell J would not accept the argument that a common law tort of ‘torture’ arising from custom (even if it could be said that one existed) would prevail over the provisions of the State Immunity Act 1978.159 Likewise, the existence of legislation providing for investigations into deaths has precluded the possibility of incorporating a ‘parallel but non-identical’ customary duty.160
(3) A third consideration is whether the proposed rule is itself contradicted by some antecedent principle of the common law. In West Rand, Lord Alverstone CJ accepted that custom could contribute to the common law insofar as it was not ‘contrary to the principles of her laws as decided by her courts’.161 Similarly, Lord Atkin in Chung Chi Cheung v R conditioned incorporation on consistency ‘with rules … finally declared by … tribunals’.162 A practical example of how extant principles may bar the expansion of the common law in this way occurred in Chagos Islanders v Attorney General.163 The case concerned a claim for damages based in reliance on the UK’s supposed breach of (p. 67) the international human right not to be prevented from returning to one’s home state. Ouseley J denied the claim, noting that even if breach of the right in question could be said to violate a common law as well as customary right, this could not, in itself, give rise to an action for damages: this would be ‘no more and no less than a particular example of a tort for unlawful administrative acts’,164 the possibility of which the House of Lords had previously excluded at common law.165
(4) A further problem is one of precedent. In Trendtex, Lord Denning said:
International law knows no rule of stare decisis. If this court is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change—and apply the change in our English law—without waiting for the House of Lords to do it … After all, we are not considering here the rules of English law on which the House has the final say. We are considering the rules of international law.166
By contrast, in Thai-Europe Tapioca Service Ltd v Government of Pakistan Scarman LJ said:
[I]t is important to realise that a rule of international law, once incorporated into our law by decisions of a competent court, is not an inference of fact but a rule of law. It therefore becomes part of our municipal law and the doctrine of stare decisis applies as much to that as to a rule of law with a strictly municipal provenance.167
But it is excessively parochial to think that an incorporated rule of international law is entirely domesticated, any more than an incorporated treaty. It should be open to the courts to reconsider the rule if there are indications of a material change in international law and more generally to track developments in the law. On the one hand, it was artificial to think that a House of Lords decision on absolute immunity of 1938168 should be considered as preclusive in the very different state of affairs in 1978. On the other hand, the decision in Trendtex was authority on the contemporary state of international law, and was in fact followed as such.169
Lord Mance in Keyu stated that ‘precedent is unlikely to be seen as so great an obstacle to reconsideration of domestic law in the light of international development’. He also recapitulated the scope of incorporation of customary international law in domestic law:
[O]nce established, [customary international law] can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law (p. 68) and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.170
It was a long-standing position in English law that the Crown’s prerogative powers were immune from judicial control. That is no longer so,171 although the extent of judicial review depends on the subject matter.172
Despite these developments, certain areas of government activity connected with international law remain generally off limits to the courts. In Abbasi, the Court of Appeal was asked to require the Foreign Secretary to make representations to the US government on behalf of British nationals detained in Guantanamo Bay. Although the Court was deeply concerned by what it saw as US intransigence, it declined to make the orders requested.173 The courts are also extremely reluctant to pronounce on issues connected to the deployment of armed forces.174
Another area which remains within the traditional non-justiciable Crown prerogative is treaty-making:175 this (in conjunction with the doctrine of no direct effect) precludes most adjudication on unincorporated treaties.176 There is, however, a measure of flexibility here,177 and the courts have sought to reduce the effects of non-justiciability, including in relation to unincorporated treaties. In the first place, courts are willing to interpret unincorporated treaties where it is necessary to do so in order to determine rights and obligations under domestic law and thereby ‘draw the court into the field of international law’.178 In Shergill v Khaira, the Supreme Court stated:
[W]hen the court declines to … review the exercise of the Crown’s prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the (p. 69) citizen is engaged whether in public or private law … But the court does adjudicate on these matters if a justiciable legitimate expectation or a Convention right depends on it. The same would apply if a private law liability was asserted which depended on such a matter.179
In Occidental Exploration, the Court of Appeal held that an award made in favour of the appellant under the bilateral investment treaty (BIT) between the US and Ecuador gave rise to justiciable rights in the UK, even though the BIT was (unsurprisingly) not part of English law.180 Similarly, in Al-Jedda,181 the claimant alleged that his detention in Iraq by British forces was in breach of the UK’s obligations under the ECHR. In turn, the government asserted that the claimant’s detention was not only justified by the need to ensure security in Iraq, but also by the terms of Security Council Resolution 1546 of 2004, which qualified the UK’s ECHR obligations by way of Article 103 of the Charter. Neither the Charter nor the resolution had been incorporated into English law. The necessary foothold came from the Human Rights Act 1998, which gave effect to the ECHR in UK law. As the Act provided that ECHR rights were only applicable to the extent they were recognized on the international law plane, the court was required to examine the effect of the resolution to determine the scope of the ECHR in the particular circumstance.182
In the second place, courts have demonstrated that they are willing to consider unincorporated treaties as part of the process of finding the UK to be in breach of its obligations under international law, though the determination of breach will have no legal effect of its own.183 Its use is most notable when illuminating rights present in municipal law under the ECHR and particularly Article 15, which permits the UK to take measures derogating from the Convention provided that such measures are not inconsistent with its other obligations under international law. Thus, in A v Secretary of State for the Home Department, Lord Bingham—determining the validity of a derogation under ECHR Article 15184 and the compatibility of the Anti-terrorism, Crime and Security Act 2001 with ECHR Article 5—said:
What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of [ECHR] article 14. It was also a violation of article 26 of the [International Covenant on Civil and Political Rights] and so inconsistent with the United Kingdom’s other obligations under international law within the meaning of [ECHR] article 15 …185
(p. 70) Thirdly, where the decision-maker explicitly relies on a treaty in making a decision, the courts will apply normal standards of judicial review to the treaty as so relied on.186
(ii) Judicial restraint and foreign acts of state
Policy considerations of a similar kind have led courts to apply a further rule of non-justiciability, holding a claim to be barred if it requires determination of the lawfulness or validity of acts of a foreign state.187 This is a doctrine of English public law which, long familiar in a general way, was clarified and confined by the Supreme Court in Belhaj v Straw.188
Broadly, the doctrine prescribes that courts do not adjudicate on matters of international law arising in disputes between foreign states. The modern source of the doctrine is Lord Wilberforce’s statement in Buttes Gas that:
[T]he essential question is whether … there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. … In my opinion there is, and for long has been, such a general principle. … [It] is not one of discretion, but is inherent in the very nature of the judicial process … I find the principle clearly stated that the courts in England will not adjudicate upon acts done abroad by virtue of sovereign authority.189
Within this principle there are two overlapping doctrines: judicial restraint on the one hand, and act of state on the other. The former is triggered by issues relating to the transactions of states,190 and requires the court to exercise its discretion to determine whether it is sufficiently equipped to handle the dispute. In Buttes Gas, the court would have been required to address vexed questions of international law arising from the actions of two emirates in the Arabian Gulf with regard to a contested island, Abu Musa, and two competing oil companies claiming concessions within its territorial sea.
Judicial restraint is a discretionary principle,191 but where it applies it is a substantive bar to adjudication, reflecting the incapacity of a national court to deal adequately with certain issues on the international plane. Thus, it cannot be waived, even by the state(s) concerned.192
(p. 71) The concept of act of state forms the hard core of the principle:193 it refers to the non-justiciability in a national court of the acts of a foreign state within its own territory194 or, exceptionally, outside it.195 Thus, in Ex parte Johnson, it was held that once consent to a re-extradition had been obtained by the UK from Austria under the European Convention on Extradition,196 in the form of a diplomatic note, the court could not then proceed to inquire into the quality of the consent so offered.197 As a domestic rule of law, it is distinct from the doctrine of state immunity, a rule of international law.198 Justiciability in this context refers to the act of determining the lawfulness or validity of a foreign act of state performed within its own domain; the court is not prevented from taking note of its existence.199
As with the wider doctrine of non-justiciability, important exceptions to the doctrine of act of state exist. The first is that the acts of a foreign state will be justiciable where their recognition as lawful would be contrary to English public policy. The exception was originally formulated in Oppenheimer v Cattermole with respect to gross human rights violations,200 and was expanded in Kuwait Airways Corp v Iraqi Airways Co to include acts of state carried out in clear violation of international law more generally. Kuwait Airways concerned the seizure and removal of aircraft owned by Kuwait Airways during the illegal invasion of Kuwait by Iraq in August 1990. But the scope of this exception is uncertain. Lord Steyn stated that not every rule of public international law will create such an exception.201 Lord Nicholls (with whom Lord Hoffmann agreed) stated that the points of law before them were ‘rules of fundamental importance’ and quoted Oppenheimer v Cattermole more generally to the effect that ‘[i]nternational law, for its part, recognises that a national court may properly decline to give effect to legislative and other acts of foreign states which are in violation of international law.’ Moreover, the exception was applied more broadly to the doctrine of judicial restraint as identified in (p. 72) Buttes Gas, based on the dictum by Lord Wilberforce that abstention was predicated on a lack of ‘manageable standards’. As Lord Nicholls noted, the breach of international law was ‘plain beyond dispute’, and was acknowledged as such by Iraq with its acceptance of the Security Council-mandated ceasefire; accordingly, ‘[t]he standard being applied by the court [was] clear and manageable, and the outcome not in doubt.’202
Thus ‘clearly established’ rules of international law may be considered part of the public policy of the UK,203 as are human rights more generally.204 In Belhaj v Straw,205 the Supreme Court confirmed these precedents, justifying its conclusion as to justiciability of acts of states under this exception on the basis of, inter alia: the peremptory nature of the rules allegedly violated; the existence of clear applicable international law standards; the otherwise justiciable conduct of British officials; and the lack of an alternative possibility for judicial investigation.
The cases concerned the UK’s alleged involvement in the detention and maltreatment (amounting to torture) of the applicants, who were foreign nationals, by foreign states abroad (in Libya and Afghanistan). The UK being the only respondent, foreign state immunity was irrelevant.206 Potential embarrassment to the UK was also largely irrelevant.207
As to foreign act of state, the court drew a distinction between municipal law acts of state (cases concerning the treatment of property and perhaps persons in a foreign state by a state acting jure imperii)208 and international law acts of state (i.e. international transactions stricto sensu wherever performed). As to the former category, the public policy exception was variously formulated: thus Lord Mance referred to cases ‘where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good measure, torture or persistent ill-treatment of an individual’,209 Lord Sumption (with whom Lord Neuberger agreed) referred to ‘cases where a foreign state executive has caused physical or mental harm to a claimant through an act in the territory of that state which was unlawful under the laws of that state’.210
As to the latter (international law acts of state), the public policy exception was also potentially applicable, and was applied in Belhaj for essentially the same reasons.211
(p. 73) A further exception arises where Parliament has rendered an issue which is ordinarily beyond the competence of the court justiciable. In the first Pinochet case before the House of Lords, Lord Nicholls noted that ‘there can be no doubt that the [act of state] doctrine yields to a contrary intention shown by Parliament’. In that case, the definition of ‘torture’ in section 134(1) of the Criminal Justice Act 1988 and section 1(1) of the Taking of Hostages Act 1982 in terms required the investigation of foreign officials in certain cases.
Formally US law views treaties and other international agreements as a source of law,212 as described by Article VI§2 of the Constitution (the Supremacy Clause):
[A]ll Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.213
As such, treaties are on a par with federal legislation, and prevail over laws enacted by the states. As Justice Sutherland said in United States v Belmont:
Plainly, the external powers of the United States are to be exercised without regard to state laws or policies … And while this rule in respect of treaties is established by the express language of [Article VI] of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states … In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear.214
A principal point of difference between the common law tradition as developed in the UK and the tradition that emerged in the US is the method by which treaties are incorporated into municipal law. In Foster v Neilsen,215 Justice Marshall adopted for the US a modified version of the UK’s dualist model. At its heart was the distinction between self-executing treaties, which by their terms could be incorporated into municipal law without more, and non-self-executing treaties,216 which required enabling legislation to be effective.217
(p. 74) A central question within US jurisprudence on treaties is the process by which a court determines that a treaty or other international agreement is self-executing. Here, vigorous debate has been prompted by the Supreme Court’s decision in Medellin v Texas,218 which concerned the domestic effect within the US of the decision of the International Court in Avena.219 There the International Court held that the US was in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR)220 to provide consular notification to foreign nationals who are detained or arrested. The consequence was an order for the ‘review and reconsideration’ of the cases of 51 individuals so affected. The question for determination by the Supreme Court in Medellin was whether the Charter—which had not been the subject of an enabling Act of Congress—was in this respect self-executing.
Earlier US decisions had referred to a variety of factors to determine the self-executing status of the treaty under consideration: ‘the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range consequences of self- or non-self-execution’.221 In Medellin, the Court gave greater weight to the text of the Charter. Chief Justice Roberts, speaking for the majority, said of Article 94 (requiring that each Member comply with decisions of the International Court to which it is a party):
The Article is not a directive to domestic courts. It does not provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that the Senate that ratified the UN Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, ‘[t]he words of Article 94 … call upon governments to take certain action.’222
On this basis, the majority concluded that as the Charter, the Optional Protocol to the VCCR, and the Statute had not been incorporated into US law by way of legislation and the treaties were not themselves self-executing, they could not be given judicial effect.223
In Medellin, the Court appears to have viewed the intention of US treaty-makers as dispositive.224 In addition, although some commentators—and notably the Restatement Third225—had previously taken the position that there was a presumption in favour of (p. 75) a treaty being self-executing, the Court in Medellin appears to have distanced itself from such a notion, instead requiring that each treaty be considered on its facts, with reference to text, structure, and ratification history.226 However, notwithstanding Medellin, lower courts continue to apply the more nuanced test for self-execution advocated in the Restatement Third.227 In addition, the Supreme Court’s emphasis on text in Medellin is not universally shared.228
But an analogue of the UK’s presumption of compatibility is present in US law. In Murray v Schooner Charming Betsy, Marshall CJ wrote that ‘an act of Congress ought never be construed to violate the law of nations if any other possible construction remains’.229 The canon was developed to resolve situations in which a treaty or rule of customary international law conflicted with a statute passed later in time by Congress. Ordinarily, this would result in the latter overriding the former. But Charming Betsy required later statutes to be interpreted, if possible, consistently with the earlier international law obligations of the US. As with the UK presumption of compatibility, the Charming Betsy canon is only applicable where the statute is ambiguous on its face.230
Some courts have interpreted the canon to breathe life into non-self-executing treaties. Such treaties may be held to have codified customary international law;231 more broadly they represent international obligations entered into in good faith from which the US presumably does not wish to depart.232
(ii) Customary international law
The traditional understanding is that the US relationship with custom is essentially monist in character. This position was formulated early on in the Paquete Habana:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending on 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.233
(p. 76) The conventional view of custom234 vis-à-vis the municipal law of the US is that it is a source of law, first in the sense that state and federal courts may apply these rules to determine a dispute and, secondly, in the sense that rules of custom, as per Charming Betsy, are tools of interpretation.235 Thus, the Restatement Third:236 ‘[c]ustomary international law is considered to be like common law in the US, but is federal law.’ This basic position remains unchallenged: two comparatively recent Supreme Court decisions saw no reason to depart from the Paquete Habana.237 But ‘[c]ustomary law does not ordinarily confer legal rights on individuals or companies, even rights that might be enforced by a defensive suit such as one to enjoin or to terminate a violation by the United States (or a State) of customary international law.’238
Customary international law, however, has been the cause of considerable scholarly friction,239 with some critics arguing that the monist incorporation of custom into municipal law is inconsistent with principles of democratic governance.240 Dubinsky links these concerns with emerging efforts to diminish the scope of custom in US municipal law, principally through the undermining of the Charming Betsy canon.241 In Serra v Lapin, a case concerning the consistency of prison wages with customary international law, it was said that Charming Betsy ‘bears on a limited range of cases’242 and could not apply to purely domestic matters that did not inject considerations of international comity.243
(iii) The Alien Tort Statute (ATS)
The ATS244 gives federal courts jurisdiction over cases where the applicable law is customary international law where (1) the plaintiff is an alien, (2) the defendant is responsible for a tort, and (3) the tort in question violates international law, including customary international law. Since the ‘rediscovery’ of the ATS in the 1980s, it has been extensively litigated, breathing life into custom as an element of domestic law in the US. Dozens of actions have been brought, some resulting in sizeable settlements. The Supreme Court in Sosa v Alvarez-Machain,245 however, narrowed the scope of those customary international law rules the breach of which could grant a right of action under the ATS to ‘norm[s] of an international character accepted by the civilized world’ that are ‘defined with a specificity comparable to (p. 77) the features of the 18th-century paradigms we have recognized’,246 being those norms with a definite content and similar international acceptance to the rules extant at the time the Act was passed (e.g. offences against ambassadors, violations of safe conduct, and piracy). Sosa was applied in Sarei v Rio Tinto, with the majority there holding that the plaintiffs’ claims of genocide and war crimes fell within the ATS, whereas claims alleging crimes against humanity arising from a blockade and racial discrimination did not.247 Justice Souter’s dictum in Sosa—that the ATS was intended to apply only to a ‘narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs’248—has also been relied on to dismiss claims which fail to evidence potential for such consequences.249
The scope of application of the ATS was further limited in Kiobel v Royal Dutch Petroleum, where the Supreme Court held that the presumption against extraterritorial application:
… applies to claims under the ATS … [W]here the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption … [I]t would reach too far to say that mere corporate presence suffices.250
(iv) Non-justiciability of political questions and acts of state
The doctrines of act of state and the non-justiciability of political questions are analogous to the UK doctrines already discussed. Both are in a state of flux.
Like the English conception of non-justiciability, the political question doctrine seeks to remove from judicial scrutiny certain politically sensitive questions thought inappropriate for judicial resolution.251 It may be traced back to Marbury v Madison,252 though the most authoritative modern statement was in Baker v Carr, which identified six factors that might render a dispute non-justiciable:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the (p. 78) potentiality of embarrassment from multifarious pronouncements by various departments on one question.253
Despite the litany of factors given in Baker v Carr, the doctrine has been applied only rarely and idiosyncratically by the Supreme Court and others in a few discrete domestic fields, including the political status of foreign countries,254 non-invocation of immunity,255 foreign affairs, and the deployment of armed forces.256 Thus, in Greenham Women against Cruise Missiles v Reagan,257 the decision to deploy American cruise missiles in the UK was held non-justiciable.
As was emphasized in Klinghoffer, ‘the doctrine is one of “political questions”, not “political cases”’.258 Similarly, in Kadić v Karadžić, it was said:
Although we too recognize the potentially detrimental effects of judicial action in cases of this nature, we do not embrace the rather categorical views as to the inappropriateness of judicial action … Not every case ‘touching foreign relations’ is nonjusticiable … and judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights. We believe a preferable approach is to weigh carefully the relevant considerations on a case-by-case basis. This will permit the judiciary to act where appropriate in light of the express legislative mandate of the Congress … without compromising the primacy of the political branches in foreign affairs.259
The doctrine of act of state in the US developed alongside its UK counterpart, and to a certain extent influenced its development.260 It is presented in the Restatement Third as follows:
In the absence of a treaty or other unambiguous agreements regarding controlling legal principles, courts in the United States will generally refrain from examining the validity of a taking by a foreign state of property within its own territory, or sitting in judgment on other acts of a governmental character done by a foreign state within its own territory and applicable there.261
(p. 79) The doctrine emerged in Underhill v Hernandez,262 which rooted the concept in considerations of international comity, and presented it as an iron rule from which no derogation was permitted:
Every sovereign state is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the mean open to be availed of by sovereign powers as between themselves.263
Over time, however, the rationale of the doctrine shifted and in the process it became more flexible.264 In Banco Nacional de Cuba v Sabbatino, the Supreme Court repositioned the act of state doctrine and abandoned the Underhill justification of state sovereignty as determinative, though sovereignty still ‘bears on the wisdom of employing [it]’.265 Rather, the Court aligned acts of state—like the political question doctrine—with considerations of the separation of powers and concerns as to possible adverse effects on US foreign policy.266
The doctrine was significantly restricted in its operation by the Supreme Court in Kirkpatrick.267 Two American contractors had bid for a construction contract with the Nigerian Air Force. The winner secured the contract through bribery, and the loser sued under US anti-racketeering laws. The Court held that the act of state doctrine will only apply where a US court is called upon squarely to assess the validity of the act in question under the sovereign’s own laws.268 Moreover, the doctrine applies only to ‘official’ or ‘public’ acts of the sovereign (acts jure imperii);269 thus, it will not apply to acts performed in a private capacity (acts jure gestionis).270
The act of state doctrine is subject to a series of further exceptions. It will not apply where a US court can look to a treaty or other ‘unambiguous instrument regarding controlling legal principles’.271 Secondly, under the Bernstein exception,272 the State Department can seek to guide the courts as to the applicability of the doctrine. The (p. 80) status of this exception is controversial, however.273 The Supreme Court in Kirkpatrick placed special emphasis on the judiciary’s responsibilities under Article III of the Constitution, placing the exception further in doubt.274
The third exception is similarly inchoate, and may arise where the act of state complained of is ‘commercial’ rather than ‘official’. This distinction can be seen as a continuation of the public/private discussion surrounding the scope of the original doctrine and has never been adopted squarely by the Supreme Court.275 But the situation is characterized by divisions and debate between and even within the various Courts of Appeals.276
The fourth, fifth, and six exceptions to the act of state doctrine are statutory in origin. The fourth is relatively straightforward: the Federal Arbitration Act277 provides expressly that ‘[e]nforcement of arbitration agreements … shall not be refused on the basis of the Act of State doctrine.’278 The fifth was an amendment introduced by the outraged Senator Hickenlooper of Iowa in response to the decision in Sabbatino. The so-called ‘Second Hickenlooper Amendment’279 provides generally that the act of state doctrine shall not apply to claims concerning alleged expropriations in violation of international law. It has, however, been interpreted narrowly by the courts, which have held that the amendment applies only where specific property directly involved in the unlawful act of state is located in the US.280 Other courts have held that the amendment will only apply in relation to property rights, as opposed to rights arising in contract. The sixth statutory exception may arise in the case of the Torture Victims Protection Act,281 which allows the filing of civil suits against individuals282 who, acting in an official capacity for a foreign nation, have committed torture or extrajudicial killing.
It is misleading to speak of a civil law approach to the reception of international law; since no uniform approach can be identified. A few general observations may be made before moving on to consider five specific case studies (France, Germany, Italy, Russia, and the Netherlands).
(p. 81) With some notable exceptions, such as the Netherlands, European jurisdictions approach customary international law from a monist perspective, and indeed many give it some form of constitutional standing. Europe is also emblematic of the monist approach to treaty law, with treaties—to the extent that they are capable of standing alone—given direct effect. This is not to say that the executive is given a free hand to make treaties, but rather that the constitutions of states such as France, the Russian Federation, and the Netherlands provide that the legislature play a role in the treaty-making process prior to signature and/or ratification. Finally, with regard to judicial avoidance techniques, the European countries tend to view the non-justiciability of foreign acts of state as an Anglo-American doctrine. They do, however, practice varying degrees of judicial restraint with regard to the acts of their own government.
As a general rule, the civil law jurisdictions adopt a monist stance with regard to customary international law, with incorporation frequently occurring at a constitutional level.
In France, this situation subsists despite the fact that the 1958 Constitution of the Fifth Republic makes no reference to custom. Rather, it contains in its preamble a renvoi to its predecessor, the 1946 Constitution of the Fourth Republic, which had stated that ‘the French Republic, true to its traditions, conforms to the rules of international public law’.283 The only relevant substantive provision in the 1946 preamble states that: ‘[s]ubject to reciprocity, France shall consent to the limitations upon its sovereignty necessary to the organization and preservation of peace.’284 These are ambiguous guidelines for the incorporation of custom.285 But the Conseil Constitutionnel appears to have accepted the applicability of custom into the French system and attempts to ensure the compatibility of French legislation with it.286 For example, by referring in its decision of 9 April 1992287 on the Treaty of Maastricht288 to the ‘rules of public international law’, the Conseil d’État accepted ‘the rule pacta sunt servanda which implies that all treaties that are in force bind the parties and must be executed by them in good faith’.
(p. 82) Some scholars seek to draw comparisons between the approach of the Conseil Constitutionnel and the supposedly negative approach of the Conseil d’État.289 This is not entirely unfair: as noted by Decaux,290 whilst the latter may recognize the existence of custom it tends to bestow on it an infra-legislative character, at least insofar as it cannot prevail over later domestic laws.291
The position is much more straightforward in Germany: the Basic Law provides in Article 25 that ‘[t]he general rules of public international law form part of the Federal law. They take precedence over the laws and directly create rights and duties for the inhabitants of the Federal territory.’292 The first sentence of Article 25 establishes custom as part of German law; the second elevates it in the municipal hierarchy of norms, such that any internal legislation deemed inconsistent will be void. Custom is subject to the provisions of the Basic Law itself. But the Federal Constitutional Court has developed an unwritten principle on the commitment of the Basic Law to international law,293 requiring all municipal law—including the Basic Law itself—to be interpreted consistently with international law to the extent possible.
In general, German judges may take judicial notice of the rules of customary international law and apply them as such. In case of doubt as to whether a customary rule exists or is capable of creating individual rights, Article 100(2) of the Basic Law requires the matter to be referred to the Federal Constitutional Court, which by tradition includes a public international law specialist.
A similar position has been taken by Italy, with article 10(1) of the Constitution of 1948 providing that ‘[t]he Italian legal system conforms to the generally recognized rules of international law.’ This provides a vehicle for the incorporation of custom into municipal law, though the ordinary method of integration via legislation remains especially for those norms of customary international law which are considered to be non-self-executing. Within the domestic hierarchy, therefore, custom assumes the status of a constitutional directive, and municipal laws will be invalid to the extent of any inconsistency.
(p. 83) This leaves open the question whether custom is to be considered superior to the Constitution itself, an issue addressed by the Constitutional Court in Russel v Societa Immobiliare Soblim,294 which concerned a possible conflict between diplomatic immunity and article 24(1) of the Constitution guaranteeing an individual right of suit. There it was held that custom—by way of the lex specialis rule—could only prevail over the terms of the Constitution where the norm in question was formed prior to the entry into force of the Constitution. More recently, however, the court appears to have adjusted this rigidly chronological rule, and has since stated that ‘fundamental principles of the constitutional order’ and ‘inalienable rights of the human being’ are the only limitations on the incorporation of custom.295 Thus, custom is considered a source of law that may override the Constitution as lex specialis to the extent that is does not conflict with a fundamental rule of the constitutional order concerning an inalienable human right.296 As stated by the Corte di Cassazione, ‘[f]undamental human rights are among the constitutional principles which cannot be derogated from by generally recognized rules of international law.’297 This was reaffirmed in controversial circumstances. Following the International Court’s finding that Italy had failed ‘to respect the immunity which the Federal Republic of Germany enjoys under international law by allowing civil claims to be brought against it’,298 domestic courts initially gave effect to the customary obligation299 and specific legislation was enacted to ensure the judiciary’s compliance with the ruling.300 However, the matter was eventually referred to the Constitutional Court,301 which held that the incorporation of this customary obligation was precluded ‘in case of actions for damages for war crimes and crimes against humanity’ due to the guarantee of inviolable rights and the right of access to a court for their alleged violation enshrined within the Constitution.302
Within the Italian system, article 10(1) represents an unusually powerful method of direct incorporation with respect to custom; it has been said to be a ‘permanent converter’ of such norms.303 It has been held to extend to peremptory norms as well (p. 84) as general principles of international law.304 Thus. all domestic legal institutions have jurisdiction to verify the content of customary international law and apply it to relevant municipal statutes. The courts are considered independent in this respect and intervention by legislature or executive is not permitted. Nor is the court required to seek proof from a party seeking to apply a customary rule any more than any other rule of Italian law.
(iv) Russian Federation
Perhaps the most unusual situation is that of the Russian Federation. On the surface, the Russian position owes much to the strongly monist attitude towards custom seen in Germany and Italy. Article 15(4) of the Constitution of the Russian Federation of 1993 provides that the ‘universally recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system’.305 This is not an ordinary constitutional norm; it is part of the first chapter of the Constitution, which may only be amended via a complicated special procedure. Moreover, the rule has been replicated in all codes and federal laws adopted after the Constitution entered into effect.306 This contrasts with the system under the Soviet Union, where invocation of international law by the courts was rare.
Nonetheless, the reality differs from the theory of Article 15(4). Russian courts are ill-equipped to determine the content of custom and the Supreme Court offers the lower courts very little in the way of useful direction. In the 10 October 2003 ruling of the Plenum of the Supreme Court, as amended in 2013, it was held that:
The universally recognized principles of international law should be understood as the basic imperative norms of the international law, accepted and recognized by the international community of states as a whole, deviation from which is inadmissible. The recognized principles of international law include, inter alia, the principle of universal respect for human rights and the principle of fulfilment of international obligations in good faith. The universally recognized norms of international law should be understood as rules of conduct, accepted and recognized as legally binding by the international community of states as a whole.307
The failure to articulate the procedure by which custom is to be received into Russian municipal law underpins Tikhomirov’s observation that Russian courts tend not to apply customary international law, but prefer to have reference to the corpus of conventional law (p. 85) that Russia has accumulated.308 Nonetheless, custom is applied on occasion, for example in Re Khodorkovskiy,309 where the applicant brought proceedings to have a portion of the Rules of Internal Discipline in Penitentiary Institutions invalidated. The provision prevented a prisoner from obtaining access to a lawyer or other representative within the prisoner’s working hours, a position contrary to customary international law. The Cassation Chamber of the Supreme Court held that by virtue of Article 15(4) of the Constitution, this norm had been integrated into the municipal law of the Russian Federation, and upheld the decision of the Supreme Court invalidating the offending regulation.310
(v) The Netherlands
In contrast to its position on treaties, the Constitution of the Netherlands is silent as to the municipal effect of custom. In principle, it does not prevail over domestic legislation, the Constitution, or the 1954 Charter for the Kingdom.311 But several statutes seek to incorporate custom into municipal law on a sui generis basis; where this occurs and the norm in question is self-executing, it will prevail over other domestic laws.312 In certain other instances, custom may be integrated without the need for implementing legislation, though custom will only take priority over delegated legislation. On those occasions where the Dutch courts make reference to custom, it is considered appropriate for them to take into account the views of the government, which represents the state in international affairs and is as such considered to be a law-making actor,313 unless the custom in question is so clear that no further input is required.
A relatively common theme between European jurisdictions is the supremacy of treaties over domestic law. For this reason, European constitutions will generally prescribe careful controls over their signature and ratification.
The French Constitution provides in article 55 that:
Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.
(p. 86) This places treaties at a level superior to ordinary legislation but inferior to the Constitution.314 But the Conseil Constitutionnel does not consider treaties to form part of the corpus of constitutionality (i.e. constitutional norms in their own right), meaning that it is spared the ordeal of assessing the conformity of every new treaty or international agreement with those that came before it.315 Article 54 does provide some form of constitutional oversight by way of referral ‘from the President of the Republic … the Prime Minister … the President of one or the other Houses or from sixty Members of the National Assembly or sixty Senators’. Where the Conseil declares a proposed agreement incompatible, revision of the Constitution prior to ratification under article 52 or 53 is required or the treaty will need to be abandoned.316
Insofar as the actual incorporation of treaties is concerned, the Constitution distinguishes between ordinary treaties, which may be signed and ratified by the President under article 52 and those treaties which require an additional act of Parliament in order for ratification to occur (art 53):
Peace Treaties, Trade agreements, treaties or agreements relating to international organization, those committing the finances of the State, those modifying provisions which are the preserve of statute law, those relating to the status of persons, and those involving the ceding, exchanging or acquiring of territory, may be ratified or approved only by an Act of Parliament.
They shall not take effect until such ratification or approval has been secured.
The category of treaties defined by article 53 is potentially broad, rendering France in respect of most significant agreements effectively dualist,317 though it claims to be a monist jurisdiction in the sense that no directly implementing statute is required to give a duly concluded and published treaty domestic effect. The article 53 division does not correspond to any taxonomy found elsewhere, and thus irrespective of whether ratification by Parliament is required prior to signature, France will incur an international obligation upon signature.
As stated in article 55 of the Constitution, subject to the conditions contained therein, a treaty will prima facie have supremacy over domestic law. Treaties will ordinarily be held to be self-executing, save where (1) the treaty in question contains only obligations directed to and as between states or (2) it cannot be applied without (p. 87) legislative elaboration. The obstacle course does not end there, however: the Conseil Constitutionnel has proved curiously reticent when called upon to assess the conformity of domestic laws with published treaties.318 This may be explained by the refusal of the Conseil to give constitutional status to international norms,319 thus allowing for the Cour de Cassation and Conseil d’État, which have no jurisdiction to exercise constitutional control, to assess the conformity of later laws with treaties. The jurisprudence of the Cour de Cassation is accordingly more forthright: in Cafés Jacques Vabre,320 it was held that the EEC Treaty was to be applied over the French Customs Code, even though the latter was later in time. The Conseil d’État went further still in the Gardedieu judgment, noting that the responsibility of the state is:
susceptible to being engaged … because of obligations that belong to it to ensure the respect for international conventions by public authorities, to make amends for all prejudices that result from the intervention of a law that is adopted in disregard of the international obligations of France.321
When applying this principle, French courts must comply with the terms of the Constitution. A treaty that has not been published in the Journal Officiel cannot be invoked before a judge and will not have domestic effect, even if in force internationally.322 The court will also be required to assess the condition of ‘reciprocity’ in article 55, though the Conseil Constitutionnel has somewhat narrowed the scope of this caveat such that it does not have to apply to all treaties,323 either on the basis of the subjective intention of the legislature in ratifying it or the objective character of the rights contained within the treaty.324 Thus, when examining the ICC Statute,325 the Conseil stated that the obligations that follow from it ‘apply to each of the State parties independently from conditions for their execution by other parties; that thus the reservation of reciprocity mentioned in article 55 of the Constitution is not to be applied’.326 Where the issue is raised before the Conseil d’État, it would previously consult the Ministry of Foreign Affairs as to whether reciprocity exists.327 It generally confined application of the doctrine to bilateral treaties, presumably due to the difficulty of monitoring international participation in multilateral treaties of an (p. 88) objective character.328 Following the decision of the European Court of Human Rights in which this practice was considered to be a violation of the right to fair trial,329 the Conseil d’État has taken upon itself to rule whether the condition of reciprocity is satisfied, albeit in the light of the Ministry of Foreign Affairs’ observations.330
Again, the position in Germany is more direct. Article 59(2) of the Basic Law bestows on the legislature the capacity to regulate the treaty-making power of the executive as follows:
Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation require the consent or participation, in the form of a federal statute, of the bodies competent in any specific case for such federal legislation.
Due to the broad wording of Article 59(2), most treaties concluded by Germany will require prior legislative ratification, published in the Bundesgesetzblatt.331 Following entry into force of the treaty, the German courts will apply it as part of national law.332 Thus, a treaty stands on a similar footing to an ordinary statute and may be repealed expressly or impliedly by later legislation, though there is a heavy presumption against this.333 The views of the executive will not be taken into account due to a fairly strict separation of powers and the total absence of any amicus curiae procedure by which it might make itself heard.334
In applying treaties, German courts recognize the distinction between self-executing and non-self-executing treaties, though there is a certain tendency to assume the latter. A treaty provision will be considered non-self-executing where (1) the treaty excludes direct application, (2) the treaty refers to the necessity of further implementation by states parties, either nationally (by decree) or internationally (by further interstate agreements), and (3) the treaty provision in question cannot be applied directly as it (a) does not designate the responsible administration, (b) does not define a necessary administrative procedure, or (c) does not designate the jurisdiction of a specific court.335 The Federal Constitutional Court has a special role to play in exercising judicial review of lower courts beyond what would be appropriate in ordinary domestic cases:
[T]he Federal Constitutional Court is also competent to prevent and remove, if possible, violations of public international law that consist in the incorrect application or non-observance by German courts of international law obligations and may give (p. 89) rise to international law responsibility on the part of Germany … In this, the Federal Constitutional Court is indirectly in the service of enforcing international law and in this way reduces the risk of failing to comply with international law. For this reason, it may be necessary, deviating from the customary standard, to review the application and interpretation of international law treaties by the ordinary courts.336
Under this system, problems may arise where a treaty requiring implementation via domestic legislation refers matters to an international tribunal which then issues a decision inconsistent with a pronouncement of the Federal Constitutional Court. This occurred in 2004, where the European Court of Human Rights ruled the developed approach of the Federal Constitutional Court with respect to the right to privacy inconsistent with ECHR Article 8.337 As a result, the court made a pronouncement as to the rank and role of the ECHR within the German legal order:338 it held that while a constitutional complaint could only be based on an alleged violation of fundamental rights guaranteed in the Grundgesetz, and not on the ECHR as such, the ECHR nonetheless formed part of the legal order. Thus, the German courts were required to take heed of the ECHR as interpreted by the European Court of Human Rights, with failure to do so being grounds for a constitutional complaint.339
The Italian Constitution makes no express provision for the incorporation of international treaties into municipal law; accordingly, a treaty will produce no direct effect unless it has been integrated via legislation.340 Two methods for this are usually identified:341 the ‘special’ method, which incorporates the treaty into law via a short statute with the treaty annexed; and the ‘ordinary’ method, which reformulates and interprets the treaty before amending national legislation in order to achieve implementation. The two are on occasion combined. The ordinary procedure is utilized wherever the treaty is incapable of standing on its own two feet as a national law, and therefore requires legislative elaboration, with the special method used where international norms ‘have an inherent aptitude—to be ascertained on a case-by-case basis—to be directly applied in the domestic order’.342
Legislative ratification via the special method will usually contain two operative provisions: an article authorizing ratification, and an article ordering ‘full implementation’ (p. 90) of the treaty. The latter is not a constitutional requirement. The use of the special method will also indicate that the legislature and executive consider the treaty in question to be self-executing. In applying a treaty ratified through the use of the special method, the courts need not defer to the other organs of state, though they are bound to take into account treaty reservations that the executive or legislature may formulate.343
The Italian Constitution was amended by a Constitutional Law of 18 October 2003 which introduced, inter alia, a new article 117(1). This states that ‘[t]he legislative power shall be exercised by the State and the Regions in compliance with the Constitution and with the constraints deriving from European Union legislation and international obligations.’ This provision has been interpreted by the Constitutional Court as meaning that provisions of those treaties that are in conformity with the Constitution as regards their content and the procedure for their adoption have indirectly a constitutional status which makes them prevail over ‘ordinary’ laws. This result is obtained by a case-by-case mechanism: a judge who considers that a domestic law provision is incompatible with a treaty, or with a customary international rule, may submit to the Constitutional Court the question of non-conformity of that law with article 117(1). The Constitutional Court has in various cases held legislation to be contrary to article 117(1), and abrogated them because of their non-conformity with the ECHR.344 Article 117 has not yet been applied to other treaties or to customary rules.
(iv) Russian Federation
As with customary international law, treaties concluded by the Russian Federation are formally integrated into its municipal legal system by virtue of Article 15(4) of its Constitution.345 Article 15(4) goes on to state that ‘[i]f other rules have been established by an international treaty of the Russian Federation than provided for by law, the rules of the international treaty shall apply.’ This gives an international treaty priority over domestic law, at least as a matter of principle;346 it does not, however, state whether a treaty has to fulfil certain conditions to gain such priority.347
The Constitution is unclear as to the rank of treaties.348 According to Article 125(2)(d), the Constitutional Court may be requested ‘to consider cases on the correspondence to the (p. 91) Constitution of … international treaties and agreements … which have not come into force’. In one case concerning such a request, the court clarified that ‘the rules of an international treaty, if they contradict [the Constitution’s] provisions, cannot find application’.349 This also applies to decisions of the European Court of Human Rights. Although the Supreme Court stated that under the legislation ratifying the ECHR350 ‘the legal positions of the European Court of Human Rights … contained in the final judgments of the Court delivered in respect of the Russian Federation are obligatory for the courts’,351 the Constitutional Court found that this obligation extended only to decisions compatible with the Constitution.352 Subsequent legislation created procedures enabling the Constitutional Court to decide on the impossibility of execution of treaty bodies’ decisions.353
As clarified by the Supreme Court, in order for a treaty to enter the Russian legal system, it must be signed and ratified.354 Under a federal law of 1995, a treaty which is self-executing and officially published has direct legal effect within the Russian legal system.355 As Butler observes, however, substantial numbers of USSR treaties were in all likelihood never gazetted and are thus not subject to application by the Russian courts.356 The Supreme Court gave some guidance in determining the self-executing character of a treaty, giving particular weight to ‘indications, contained in the treaty, regarding obligations of Member States to amend national laws of these states’.357 Where a treaty is not self-executing, municipal effect may be provided via legislative enactment and embellishment.
In interpreting and applying international conventions, Russian courts have proved punctilious in enforcing these requirements,358 applying them also to provisionally applicable treaties although the federal law of 1995 does not explicitly require publication for domestic legal effect in this context.359 Insofar as interpretation is concerned, the courts may have recourse to the views of the Ministry of Foreign Affairs, but will ordinarily apply VCLT Articles 31 and 32. Their scope of review does not, however, extend to assessing the content or legitimacy of reservations made by the government.360 Failure to apply relevant treaty provisions, or error in their application, may be corrected on appeal.361
(p. 92) Article 15(4) was discussed at some length by the Russian Constitutional Court in Anchukov & Gladkov v Russia.362 The case concerned the contentious issue of prisoners’ voting rights. The European Court of Human Rights had held that what it construed as a complete ban on prisoners voting contravened Article 3 of Protocol 1 to the European Convention. The Constitutional Court held that the decision did not need to be implemented in terms, since it contradicted Article 32(3) of the Russian Constitution. It nonetheless left it open for the legislature and the courts to adapt Russian legislation and judicial practice so as to allow at least a measure of compliance with the European Court’s judgment.363
(v) The Netherlands
With respect to treaties, the system of incorporation described by the Netherlands sits the furthest towards the monist end of the spectrum. All treaties binding on the Netherlands as a matter of international law are automatically incorporated into the Dutch municipal legal system, without any need for implementing legislation. The rule is not constitutional per se,364 but may be traced back to a 1919 decision of the Supreme Court.365 The historical rationale for the principle is only partly satisfied by the democratic fact that treaties entered into by the Netherlands must be approved by Parliament. Rather, as Nollkaemper notes,366 it is more a reflection of the Netherlands’ generally accepting attitude towards international law, as reflected in the constitutional imperative that the Netherlands actively promote the development of the international legal order.367
Due to the unusual efficiency of the Dutch system, careful control is exercised over the treaty-making process by the bicameral legislature of the Netherlands, the States-General.368 Although the government is directly responsible for the negotiation of treaties, the legislature must be kept informed throughout the process of negotiation and updated regularly.369 It may also add interpretive declarations or reservations to the bill approving the treaty, which are then incorporated by the (p. 93) government when the treaty is formally concluded.370 Once the text is finalized and approved by the Council of Ministers, it will be referred to the legislature prior to final signature or ratification and accompanied by an explanatory memorandum, consisting primarily of an article-by-article commentary. Article 91(1) of the Constitution provides that ‘[t]he Kingdom shall not be bound by treaties, nor shall treaties be denounced without the prior approval of Parliament.’ It goes on to state, however, that ‘cases in which approval is not required shall be specified by Act of Parliament’, leading the Law on Treaties to create several significant loopholes by way of a list of exceptions contained in Article 7.371 Furthermore, both the Constitution and the Law on Treaties provide for the facility of merely tacit approval.
Treaties will ordinarily be approved by a simple majority within the States-General. Where, however, a proposed treaty conflicts with a provision of the Constitution, Article 91(3) provides that a two-thirds majority in both the upper and lower houses will be required for approval to be granted. Once approved, the provisions of self-executing treaties will on a sui generis basis override the Constitution, making the Netherlands one of the few jurisdictions in the world that places international law obligations above its constitutional instrument within the domestic legal order. This much is provided in Article 94 of the Constitution, which provides that ‘[s]tatutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions of international organizations that are binding on all persons.’ The inclusion of the caveat ‘binding on all persons’ is an important one, and has been interpreted as excluding those treaty provisions that require further parliamentary action in order to take effect (i.e. non-self-executing provisions).372 The question of direct effect is resolved by the courts first by reference to the intention of the states parties to the treaty, with the court then resorting to a textual analysis where intention cannot be determined.373 Even if a treaty provision explicitly requires the adoption of measures at the domestic level to achieve a certain ‘standard of protection’, the provision is still deemed to be self-executing if the standard ‘is sufficiently precise’ to be applied ‘unconditionally as an objective right within the judicial legal system’.374 Even without direct effect, treaties may still play a role in the interpretation of legislation: ‘Dutch courts should, as far as is possible, interpret and apply Dutch law in such a way that the State meets its treaty obligations.’375
As with customary and conventional international law, the question of judicial abstention or intervention in state affairs is the result of choices internal to each legal system.376
In France, this is represented by the doctrine of acte de gouvernement, which will exclude judicial review of an executive decision where it either (1) ‘project[s] onto the international plane the manifestation of the wishes of the French authorities and consequently only [has] meaning in the context of the relations between the French State and an international organization or another State’; or (2) ‘exclusively [involves] an assessment of the appropriateness of action from the standpoint of foreign policy’.377 The Conseil d’État has confirmed that the question is one of the competence of French tribunals and not the admissibility of the claim.378 The doctrine has been applied, inter alia,379 to the exercise of government powers to protect French nationals abroad,380 the decision whether or not to publish an international agreement,381 an alleged omission in the conduct of relations with a foreign government,382 the vote of a minister in the European Council,383 the establishment of an international maritime exclusion zone,384 a refusal to enter into international negotiations with a foreign state or institute proceedings before the International Court,385 the suspension of an international agreement,386 the suspension of scientific cooperation with Iraq following the invasion of Kuwait,387 the Prime Minister’s implied refusal to submit a bill to Parliament to transpose a framework decision of the EU,388 the government’s opposition to holding the Syrian presidential elections on French territory,389 and the nomination of a particular individual for a judgeship at the International Criminal Court.390 It was applied to the decisions to deploy French troops against Yugoslavia during the Kosovo War391 and to allow US/UK aircraft to access French airspace during the Second Gulf War.392
The French judiciary will only consider an acte de gouvernement where it has a definable international flavour; where the act is based primarily on considerations (p. 95) relating to public policy or the national public services, whether carried out at home or abroad, it will be justiciable.393 The withdrawal of a French cooperation assistant serving abroad was considered not so much a sovereign act as an act of management carried out by the national public services responsible for cooperation.394 The same may be said of the allegedly inadequate protection of foreign diplomats by French police395 and the destruction by the French Navy of a ship abandoned on the high seas.396
The doctrine of acte de gouvernement has been the subject of erosion, however, under what Advocate-General Darmon referred to as the theory of ‘detachable acts’. On this approach, an act that might prima facie appear non-justiciable may nevertheless be subject to the courts’ jurisdiction ‘if the French authorities have some independent choice with regard to the procedure by which they perform their international obligations and can themselves take the initiative as regards the means by which they comply with those obligations’.397 Decisions as to extradition have proved particularly susceptible to such separation, as seen in UK and Governor of Hong Kong. There, the British government applied to the Conseil d’État for the review of a decision by the French government not to extradite a Malaysian businessman accused of serious fraud and financial mismanagement in Hong Kong. Commissaire du Gouvernement Vigouroux argued that judicial review of extradition matters would not impede the government’s freedom of action in foreign policy. Accordingly, a decision rejecting extradition was severable from the wider field of bilateral diplomatic relations and judicial review was permitted.398
The German constitutional model is characterized by a strong system of judicial review that virtually eliminates non-justiciability. Judicial review of executive acts is not an implied right but a deliberate choice in a system that establishes a court for the purpose of assessing the conformity of executive acts and legislation with the Basic Law. Article 19(4) of the Basic Law provides: ‘Should any person’s right be violated by public authority, recourse to the court shall be open to him.’ Article 93(1)(1) further permits suits to be launched between different organs of the federal government on questions of competence.399 The Federal Constitutional Court was created to sit outside the ‘ordinary’ court system and hear those matters associated with the enforcement of the Basic Law.400
(p. 96) Although prima facie applying only to those basic rights contained within the Basic Law itself (which, it must be remembered, are to be interpreted in accordance with international law, itself superior to domestic statute),401 this limitation has been eroded through the breadth of the rights in question,402 and subsequent judicial expansion through interpretation. An affected citizen may invoke the interests of third parties403 and questions of federalism and the separation of powers in bringing a suit.404 Even more remarkably, Article 93(1)(2) permits a quarter of the members of the Bundestag to file an action directly in the Federal Constitutional Court challenging the constitutionality of a piece of legislation; thus, when a divisive piece of legislation is passed by a narrow majority, it can reasonably be expected to get a second airing before the court.405
Within the German constitutional system, there is no tradition of automatic judicial deference to the executive in regard to foreign policy.406 This potentially extends to questions surrounding the deployment of Germany’s armed forces.407 When the German government sought to join NATO forces charged with enforcing resolutions of the Security Council in Yugoslavia, this was challenged in International Military Operations.408 The Federal Constitutional Court held that such action was permissible so long as it remained within the framework of a ‘system of mutual collective security’.409 The power of review further extends to the treaty-making power of the German state, with the court intervening to assess and provide texture to both the Basic Treaty410 between the German Democratic Republic (GDR)411 and the Federal Republic of Germany (FRG) and the Maastricht Treaty.412
Confusingly, however, some hints of an aversion to ‘political questions’ may on occasion be detected. In Cruise Missiles (Danger to Life),413 a number of FRG citizens launched a constitutional challenge against the deployment in the FRG of American (p. 97) medium-range missiles with nuclear warheads in accordance with a NATO resolution. The applicants alleged that the missiles violated the right to life and physical integrity under Article 2(2) of the Basic Law, and further argued that the deployment infringed Article 25 since it violated a general rule of international law prohibiting such weapons. The court refused to hear the application for three reasons: (1) there was no data available by which the court could ascertain the alleged risk to life and health and, in any case, the materialization of such a risk was wholly dependent on the future political and military decisions of the USSR; (2) any infringement of the Basic Law on which such a claim could be based could only be actionable against the German state, with the direct threat here arising from the nuclear potential of the USSR; and (3) it was the responsibility of the government to decide upon the foreign and defence policy of the FRG, not the court.414
According to Currie, in refusing to hear such matters the court is doing nothing more than concluding that the Basic Law commits a certain issue to the discretion or determination of another branch of government.415 A similar solution was hinted at in Chemical Weapons, linking the availability of judicial review to the particular character of national defence. The court held that:
in order to comply with the requirements for the admissibility of constitutional complaints based on an alleged violation of the duty of protection enshrined as a basic right in Article 2(2) … the complainant must be able to prove conclusively that the public authorities either totally failed to take precautionary measures or that the regulations enacted and the measures actually taken were totally inappropriate or wholly insufficient to achieve the aim of providing protection …416
In such cases, the court has not excluded judicial review entirely but imposed an evidentiary hurdle commensurate with the gravity of the issues under consideration. Formally, it remains the case that Germany has not yet developed a doctrine of non-justiciability. In a case regarding Germany’s participation in the identification of potential targets for NATO airstrikes, the Constitutional Court held that ‘[t]he preparation of military target lists and the non-invocation of a veto right against the inclusion of an object on those lists as a legitimate target are not political decisions, which would be beyond judicial control.’417 The court also noted that, due to the constitutional significance of state liability and the claimants’ lack of access to information, a shift in the burden of proof—requiring the state to explain its conduct—may be permissible for effective judicial review. Nevertheless, the provisional nature of the list and the discretion afforded in the conduct of military operations led the court to conclude that Germany’s conduct was consistent with applicable international humanitarian law rules.418
As with the French system, Italian doctrine provides that acts of government (teoria dell’atto do governo) are non-justiciable, basing its position on the notion that the exercise of government discretion is necessary in order to preserve certain constitutional or political imperatives.419 Here, the point of reference is the Constitution, which reserves certain matters for the executive and legislature, most notably the capacity of Parliament to declare a state of war and vest the government with the necessary powers of prosecution.420 Such acts, by reason of their inherently discretionary character but also due to separation of powers considerations, are non-justiciable.
The leading decision is Marković, where the Corte di Cassazione ruled on the liability of the Italian government in claims brought by Serbian civilians whose relatives were killed during an aerial bombardment of Belgrade by NATO forces in 1999. Liability was premised on two alternative bases: that Italy was jointly liable for the airstrike as a NATO member; or the bombardment was carried out from bases located on Italian soil. In a concise judgment, the court held that the acts in question were non-justiciable:
The selection of a method for conducting hostilities is amongst those acts which are performed by the Government. All such acts are expressions of a political function which, under the Constitution, is envisaged as emanating from a constitutional organ. The nature of this function is that it is impossible to protect individual interest from its effects on the basis that those acts falling within its scope are incapable of precise definition … With regard to acts of this type, no court has the power to review the manner in which the function is exercised.421
Thus, the Italian approach sits within the same tradition as that of France, the UK, and the US.422
The Russian system for judicial review is similar to its German counterpart. Article 46(2) of the Constitution provides that ‘[d]ecisions and actions (or inaction) of state bodies, bodies of local self-government, public associations and officials may be appealed in a court of law.’ Courts tend to see any attempt to transgress this right as (p. 99) unconstitutional.423 Moreover, administrative complaints are generally not subject to the defence of sovereign immunity.424 A wider jurisdiction is posited by Article 125 with respect to the Constitutional Court;425 though its capacity to hear certain disputes is dependent on referral of the matter by a relevant government body,426 it retains the general jurisdiction to hear complaints regarding the violation of the constitutional rights and freedoms of citizens on petition.427
The landscape of judicial review and non-justiciability in Russia is complicated by the fact that the current Constitutional Court is Russia’s second since the break-up of the Soviet Union. The first was established in 1991, with its jurisdiction based in part on the 1978 Constitution of the Soviet Union combined with the 1991 Law on the Constitutional Court of the Russian Soviet Federative Socialist Republic, which did not exclude the court from involvement in political affairs.428 The result was a highly destructive confrontation between the court and President Yeltsin in the context of the 1993 Russian constitutional crisis. This ended with the introduction of the current 1993 Constitution and the 1994 Law on the Constitutional Court, Article 3 of which states that the court ‘shall rule exclusively on questions of law’. The court lost the right to examine cases ex proprio motu as well as its competence over non-normative acts of the president and other executive officials and agencies.429
Despite the imperative contained in Article 3 of the 1994 Law on the Constitutional Court, the court has not refrained from addressing issues which would ordinarily be thought political in character.430 For example in the Chechnya case,431 the court was asked by a minority in the Russian Parliament pursuant to Article 125(2) of the Constitution to assess the constitutionality of a decision by President Yeltsin to order troops to Chechnya. Although it refused to consider ‘the political expediency of the [government’s] decisions or the validity of the actions carried out on that basis’, the court nonetheless considered itself competent to rule on the legality of the initial orders, which were upheld.432
It is to be remembered that Article 3 of the 1994 Law on the Constitutional Court is a jurisdictional limitation applicable to that court alone; there is no evidence of a similar doctrine developing at other levels of the Russian judicial hierarchy, though its theory and practice remain relatively inchoate.
Judicial review in the Netherlands bears a passing similarity to the German position, but is at the same time quite different owing first to the unusual position that treaty law holds within the jurisdiction and, secondly, to the strictures of the Dutch Constitution. Article 120 of the Constitution provides that the ‘constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts’.433 This automatically places a jurisdictional limitation—unique amongst liberal democracies—on judicial review that may only be resolved by the fact that Dutch law does not consider treaties to be ‘constitutional’ in nature, opening the possibility of assessing municipal statutes according to the yardstick of international conventions signed and ratified by the Netherlands.434
Dutch law does not know of a political question doctrine, in the sense that those issues intrinsically connected with the legislature are automatically removed from the competence of the courts.435 Rather, it has in recent times begun to demonstrate—on a discretionary basis—an extreme deference towards the exclusive competence of the legislature with respect to political matters. This first arose in Association of Lawyers for Peace which again considered a pre-emptive application by a community group seeking a declaration that the deployment of nuclear weapons by the Netherlands would be illegal. Dismissing the application, the court held that:
[T]he applications instituted in the present action relate to questions concerning the policy of the State in the area of foreign policy and defence, which … will depend to a large extent on political considerations … This means that the civil courts should observe a large degree of restraint in assessing applications such as the one instituted in the present case, which are designed to designate in advance as unlawful … acts to implement political decisions in the area of foreign policy and defence … It is not, after all, the function of the civil courts to make political decisions of this nature.436
This doctrine of judicial restraint in matters of foreign policy and defence has been applied repeatedly since,437 most notably in dismissing an application to have President Bush arrested for war crimes on an official visit to the Netherlands,438 and in yet another pre-emptive application to prevent the deployment of Dutch forces in any attempt to support retributive measures by the US in the wake of the 9/11 terrorist attacks without the authorization of force by the Security Council.439
(p. 101) In two cases regarding the legality of Dutchbat’s conduct—a Dutch contingent, part of an international peacekeeping force in Srebrenica—the Supreme Court rejected the government’s submission that judicial restraint should be exercised. The lack of a legal basis requiring the courts to refrain from ruling on the issue was noted. While recognizing the potential adverse effects on peace operations, the Supreme Court held that:
The exercise of judicial restraint … would mean that there would be virtually no scope for the courts to assess the consequences of the conduct of a troop contingent in the context of a peace mission, in this case the conduct of which Dutchbat and hence the State are accused. Such far-reaching restraint is unacceptable.440
In Urgenda Foundation v The Netherlands, limited deference to governmental authorities was further demonstrated. There, the national policy on the reduction of greenhouse gas emissions was challenged on the basis that it inadequately protected human health and the environment, in violation of domestic and international law. In the first instance it was held that although the relevant treaty provisions had no direct effect, they limited the government’s discretion and informed the standard of care it must exercise. It was further accepted that the claim concerned legal protection and was thus justiciable; ‘the possibility—and in this case even certainty—that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes.’ The court disregarded the potential interference its decision could have on the Dutch negotiating position. Ultimately, a breach of the state’s duty of care was found and the Netherlands was ordered to further limit the volume of greenhouse gas emissions.441 On 9 October 2018 the Hague Court of Appeal upheld the decision of the Hague District Court.442
On the whole question of the relation between national and international law, theoretical constructions have done much to obscure realities. If one had to choose between the theories considered earlier in this chapter, then the view of Fitzmaurice might be preferred as coming closer to the truth. Each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and (p. 102) international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally?443 This seems to suggest a pluralist vision in which it falls to each system to regulate its own relationship with other legal systems. The second factor is the difficulty of proving the existence of particular rules of international law. In the case of difficulty, national courts usually rely on advice from the executive or existing precedents, and the result may not accord with an objective appreciation of the law. Thirdly, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters. An international court may find it necessary to apply rules of national law, while bodies, such as the United States Foreign Claims Settlement Commission, which are national in terms of organization and competence may find it appropriate, and be authorized, to apply rules of international law on a large scale. When a national court applies a rule of international law because it is appropriate, it is pointless to ask if the rule applied has been ‘transformed’, except insofar as ‘transformation’ describes a process required by a particular national system before certain organs are permitted, or are willing, to apply rules of international law.
1 Terminology is not consistent; the terms ‘national’, ‘municipal’, ‘domestic’, and ‘internal’ are all used to refer to the legal order of or within the state, although the terms have slightly different connotations. Here the term used is ‘national’, but it includes local or regional as well as central laws and institutions.
2 Triepel (1923) 1 Hague Recueil 77; Kelsen, Principles of International Law (2nd edn, 1966) 290, 551; Lauterpacht, 1 International Law: Collected Papers (1970) 151; Santulli, Le statut international de l’ordre juridique étatique (2001); Nijman & Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (2007); Crawford, Chance, Order, Change (2014) 160–82; Björgvinsson, The Intersection of International and Domestic Law (2015) ch 2.
5 1 Oppenheim (8th edn, ed Lauterpacht, 1955) 38: ‘… it is only by reference to a higher legal rule in relation to which they are all equal, that the equality and independence of a number of sovereign States can be conceived. Failing that superior legal order, the science of law would be confronted with the spectacle of some sixty sovereign States, each claiming to be the absolutely highest and underived authority.’ This passage does not appear in the ninth edn.
6 Kelsen, General Theory of Law and State (1945) 363; Kelsen (2nd edn, 1966) 553. For views related to but not identical with those of Kelsen: Verdross (1927) 16 Hague Recueil 247, 287; Kunz (1924) 10 GST 115; Starke (1936) 17 BY 66. On Kelsen: von Bernstorff, The Public International Law Theory of Hans Kelsen (2010); Kammerhofer, Uncertainty in International Law (2011); Kammerhofer in Orakhelashvili (ed), Research Handbook on the History and Theory of International Law (2011) 143; von Bernstorff in Orford & Hoffmann (eds), The Oxford Handbook of the Theory of International Law (2016) 192.
7 Kelsen (2nd edn, 1966) 564. This was Kelsen’s second attempt at the basic norm; the first was pacta sunt servanda (Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (2nd edn, 1928) 217), which was later subsumed within the Grundnorm: Kelsen, Reine Rechtslehre (1934) 130. Further: Koskenniemi, The Gentle Civilizer of Nations (2001) ch 3; Koskenniemi, From Apology to Utopia (2nd edn, 2005) 226–40.
18 To talk simply of dualism is to imply that national legal systems all have the same features. Why should this be? The US is not the Federal Republic of Germany; their relation is international not constitutional, but international law holds them apart; it does not unify them: e.g. Cohen in Besson & Tasioulas (eds), The Philosophy of International Law (2010) 261. For EU law, which unifies to a degree: Slaughter & Burke-White in Nijman & Nollkaemper (2007) 110.
20 VCLT, 22 May 1969, 1155 UNTS 331, Art 27, referring to justification for failure to perform a treaty. Cf VCLT, Art 46, permitting a state to argue the invalidation of consent by reason of the violation of its internal law where the violation was ‘manifest and concerned a rule of its internal law of fundamental importance’. Further: chapter 16.
24 The leading cases are Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 132; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, ICJ Reports 1988 p 12, 34; Elettronica Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989 p 15, 51, 74; Avena (Mexico v US), ICJ Reports 2004 p 12, 65; Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ Reports 2012 p 422, 460.
33 Brazilian Loans (1929) PCIJ Ser A No 21, 124–5; Nottebohm (Liechtenstein v Guatemala), Second Phase, ICJ Reports 1955 p 4, 35–6 (Judge Read, diss), 51 (Judge Guggenheim, diss); United States—Carbon Steel, WTO Doc WT/DS213/AB/R, 28 November 2002, para 157.
36 Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 181 (Judge McNair, diss); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Reports 2008 p 177, 230. Also: Helnan International Hotels v Arab Republic of Egypt, ICSID Case ARB/05/19, 3 July 2008, paras 106, 163; RSM Production Corp v Grenada, ICSID Case ARB/10/6, 10 December 2010, paras 7.1.11–7.1.14; Marion Unglaube v Republic of Costa Rica, ICSID Case ARB/08/1, 16 May 2012, paras 231, 255.
37 Diallo, ICJ Reports 2010 p 639, 665. Also: Fraport AG Frankfurt Airport Services Worldwide v Philippines, ICSID Case ARB/03/25, 23 December 2010, paras 236, 242; Marion Unglaube v Republic of Costa Rica, ICSID Case ARB/08/1, 16 May 2012. At para 231 the Tribunal finds that there is limited evidence for the Supreme Court’s decision about a buffer zone. At para 255 the Tribunal nevertheless applies the Guidelines emanating from that decision.
38 Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B No 49, 294, 336; International Responsibility for the Promulgation of Laws in Violation of the Convention (1994) 116 ILR 320, 332.
39 The PCIJ in Upper Silesia was not unequivocal in its remark that the Court was ‘not called upon to interpret the Polish law as such’: (1926) PCIJ Ser A, No 7, 19. Also: Nottebohm, Second Phase, ICJ Reports 1955 p 4, 36 (Judge Read, diss), 52 (Judge Guggenheim, diss); Guardianship of Infants (Netherlands v Sweden), ICJ Reports 1958 p 55, 108 (Judge Moreno Quintana).
40 Guardianship of Infants, ICJ Reports 1958 p 55, 91 (Judge Lauterpacht); Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt (1988) 3 ICSID Reports 131, 141–2; Zhinvali v Georgia (2003) 10 ICSID Reports 3, 80; MTD Equity Sdn Bhd and MTD Chile SA v Chile (2004) 12 ICSID Reports 3, 40; Inceysa Vallisoletana v Republic of El Salvador, ICSID Case ARB/03/26, 2 August 2006, paras 260–4; Enron Corp v Argentine Republic, ICSID Case ARB/01/3, 22 May 2007, para 206; Marion Unglaube v Republic of Costa Rica, 16 May 2012, para 190.
43 Marek (1962) 66 RGDIP 260; Stoll, L’application et l’interprétation du droit interne par les juridictions internationales (1962); Jenks (1964) 547; Santulli (2001); Kjos, Applicable Law in Investor-State Arbitration (2013) 240–58.
53 German Settlers in Poland (1923) PCIJ Ser B No 6; Minority Schools in Albania (1935) PCIJ Ser A/B No 64, 4. The Permanent Court did not regard formal equality as the only criterion of equal treatment. Further: Fitzmaurice (1959) 35 BY 183, 191.
54 Serbian Loans (1929) PCIJ Ser A No 20. Also: Brazilian Loans (1929) PCIJ Ser A No 21; Danzig Legislative Decrees (1935) PCIJ Ser A/B No 65; Illinois Central Railroad Co (USA) v United Mexican States (1926) 4 RIAA 21; Norwegian Shipowners (1922) 1 RIAA 307, 330.
59 E.g. Barbie, 20 December 1985, JCP 1986 II 20655 (1988), 100 ILR 330. Also in relation to deference to the national executive in treaty interpretation: Aust, Rodiles, & Staubach (2014) 27 LJIL 75, 86–8. Cf Fulwood v Germany, 734 F3d 72 (1st Cir, 2013). Further: Arato in Aust & Nolte (eds), The Interpretation of International Law by Domestic Courts (2016) 198.
60 R v Keyn (1876) 2 Ex D 63; Re Piracy Jure Gentium  AC 586; State (Duggan) v Tapley  IR 62; Lauritzen v Government of Chile (1956) 23 ILR 708; R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2010 (Admin).
62 Jones v Ministry of Interior (Kingdom of Saudi Arabia)  UKHL 26,  (Lord Bingham); La Générale des Carrières et des Mines v FG Hemisphere Associates LLC  UKPC 27, –,  (Lord Mance); R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2010 (Admin), – (Lloyd Jones LJ); Kontic v Ministry of Defence  EWHC 2034 (QB), – (Irwin J).
65 Thus, in monist systems the parliament will usually play a much more active role in the debate prior to adoption of the treaty: e.g. Constitution of the Netherlands, Arts 91, 94; Constitution of the Russian Federation, Art 15.3. Further: Shelton in Shelton (2011) 1, 6; Verdier & Versteeg (2015) 109 AJIL 514, 518–19.
67 E.g. Lord Advocate’s Reference (No 1 of 2000) 2000 SLT 507, where a Scottish court had to determine the legality of the UK’s Trident nuclear missile programme, despite the fact that the International Court had earlier avoided answering the question whether the mere holding of nuclear weapons was in breach of international law: Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996 p 226. Further: Neff (2002) 51 ICLQ 171. On the contribution of domestic courts to various areas of international law, see (2013) 26 LJIL 531–665.
68 E.g. Nulyarimma v Thompson (1999) 96 FCR 153; Rasul v Bush, 542 US 466 (2004); Ferrini v Federal Republic of Germany (2004) 128 ILR 658; R v Jones (Margaret)  1 AC 136; Simoncioni v Germany, Italian Constitutional Court, 22 October 2014, Judgment No 238 (noted (2015) 109 AJIL 400). On state immunity: chapter 22.
69 28 USC §1350 (initially enacted in 1789). Also: Torture Victims Protection Act 1991, 106 Stat 73. Further: chapter 21.
70 Filartiga v Pena-Irala, 630 F2d 876 (2d Cir, 1980); Sosa v Alvarez-Machain, 542 US 692 (2004); Kiobel v Royal Dutch Petroleum, 133 S Ct 1659 (2013). Further: Roth (2004) 98 AJIL 798; Stewart & Wuerth (2013) 107 AJIL 601.
71 Paust (1988) 82 AJIL 760; Vásquez (1995) 89 AJIL 685; Crootof (2011) 120 Yale LJ 1784; Iwasawa (2016) 378 Hague Recueil 9, 54–90; cf Verdier & Versteeg (2015) 109 AJIL 514, 523–5. Generally: Kaiser, ‘Treaties, Direct Applicability’ (2013) MPEPIL.
72 E.g. Arantzazu Mendi  AC 256; Gur Corp v Trust Bank of Africa Ltd  QB 599; GITSI  Rec Lebon 171, 111 ILR 499; Agyepong  Rec Lebon 523, 111 ILR 531; British Arab Commercial Bank plc v National Transitional Council of the State of Libya (2011) 147 ILR 667; R (Sultan of Pahang) v Secretary of State for the Home Department (2011) 152 ILR 543; Khurts Bat v Investigating Judge of the German Federal Court (2011) 147 ILR 633; Al-Juffali v Estrada  EWCA Civ 176; Al Attiya v Al Thani  EWHC 212 (QB); Bouhadi v Breish  EWHC 602 (Comm); cf R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2010 (Admin), . Also: R v Gul  EWCA Crim 280,  (appealed on other grounds:  UKSC 64). Further: McLachlan, Foreign Relations Law (2014) 240–8.
77 E.g. in Australia the adoption of legislation based on international human rights standards by the Australian Capital Territory and Victoria, where no comparable bill of rights exists on a constitutional or federal level: Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Momcilovic v R  HCA 34.
78 Reinisch (2004) 3 LPICT 37; Shany, Regulating Jurisdictional Relations Between National and International Courts (2007); Hobér (2014) 366 Hague Recueil 99, 294–324. Also: Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (2013) ch 6; Schaffstein, The Doctrine of Res Judicata before International Commercial Arbitral Tribunals (2016).
79 Cheng, General Principles of International Law (1953) 336; Reinisch (2004) 3 LPICT 37, 44; Dodge, ‘Res Judicata’ (2006) MPEPIL; Shany (2007) 159; Schreuer et al, The ICSID Convention (2nd edn, 2009) 609; Hobér (2014) 366 Hague Recueil 99, 294; Lock, The European Court of Justice and International Courts (2015) 58. Also: Interpretation of Judgments No 7 and 8 (Factory at Chorzów) (1927) PCIJ Ser A No 13, 27 (Judge Anzilotti, diss); Trail Smelter (1938) 3 RIAA 1905, 1950; Waste Management Inc v United Mexican States (2002) 6 ICSID Reports 549, 559; Effect of Awards of Compensation made by the UN Administrative Tribunal, ICJ Reports 1954 p 47, 53; Amco Asia Corp v Indonesia (1988) 1 ICSID Reports 543, 549; Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43, 90–1; Cases A3/A8/A9/A14/B61 (2009) 38 Iran–US CTR 197, 241; Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2011 p 420, 443; ConocoPhillips v Venezuela, 10 March 2014, para 21. Some scholars go so far as to elevate it to the status of custom: Reinisch (2004) 3 LPICT 37, 44; Shany (2007) 159–60.
81 Cf Georges Pinson (France) v United Mexican States (1928) 5 RIAA 327, 348 (the tribunal held that it would give great weight to factual findings made by the national claims commission). Under the North American Free Trade Agreement (NAFTA), 17 December 1992, 1994 CTS 2, Art 1131(2), decisions of the Free Trade Commission (an intergovernmental executive body) are binding on tribunals: e.g. Mondev International Ltd v United States of America (2002) 6 ICSID Reports 181, 223–4; Methanex v US (2005) 16 ICSID Reports 32, 193.
84 E.g. Occidental Exploration and Production Co v Republic of Ecuador (2004) 138 ILR 35, 48–53; Toto Costruzioni v Republic of Lebanon, 11 September 2009, paras 211–12; cf Pantechniki SA v Republic of Albania, 30 July 2009, paras 61–4.
85 Shany (2007) 161. Further: Iwasawa (2016) 213–42. Also: Diggs v Richardson, 555 F2d 848 (DC Cir, 1976) (Security Council resolution non-self-executing); Bradley v Commonwealth of Australia (1973) 128 CLR 557; Medellin v Dretke, 544 US 660 (2005).
87 Socobel v Greek State (1951) 18 ILR 3; Committee of United States Citizens Living in Nicaragua v Reagan, 859 F2d 929 (DC Cir, 1988); Breard v Greene, 523 US 371 (1998), and generally Schulte, Compliance with Decisions of the International Court of Justice (2004) 77.
89 E.g. Arbitration Act 1996 (UK) ss58, 66; 9 USC §13; International Arbitration Act 1974 (Cth), ss16, 33; UNCITRAL Model Law on International Commercial Arbitration 2006, Art 17H(1). Also: Hobér (2014) 366 Hague Recueil 99, 130, 134–5, 138–44.
94 Cf RSM Production Corp v Grenada, 10 December 2010, paras 7.1.2, 7.1.5. On estoppel: chapter 18. Also: ILA committee reports on lis pendens and res judicata in international commercial arbitration: (2009) 25 Arb Int 35 (Interim Report); (2009) 25 Arb Int 67 (Final Report); (2009) 25 Arb Int 83 (Recommendations).
100 Barbuit (1737) Cases t Talbot 281; Triquet v Bath (1764) 3 Burr 1478, 1481; Heathfield v Chilton (1767) 4 Burr 2015, 2016. Later: De Wütz v Hendricks (1824) 2 Bing 314, 315; Emperor of Austria v Day (1861) 30 LJ Ch 690, 702 (reversed on appeal on another point); R v Keyn (The Franconia) (1876) 2 Ex D 63. Further: O’Keefe (2008) 79 BY 7, 12–23.
103 The term ‘English law’ has been used here for the sake of concision, but the position in England broadly reflects that in other Commonwealth countries: McNair, Treaties (1961) 81; Fatima (2005); Sales & Clement (2008) 124 LQR 388, 394–413; Neff in Shelton (2011) 620, 621–6; Aust, Modern Treaty Law and Practice (3rd edn, 2013) 159.
106 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418, 500. Further: The Parlement Belge  4 PD 129, 150; Post Office v Estuary Radio Ltd (1968) 2 QB 740, 753. But see Bjorge  Public Law 586.
107 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418, 499–500 (Lord Oliver). Also: Rustomjee v R  2 QB 69, 74 (Lord Coleridge); The Parlement Belge (1879) 4 PD 129, 150, 154–5 (Sir Robert Phillimore); Walker v Baird  AC 491, 496–7 (Lord Herschell); Mortensen v Peters (1905–6) F (JC) 93, 100–1 (Scottish High Court of Justiciary); Hoani Te Heuheu Tukino v Aotea District Maori Land Board  AC 308 (PC), 324–5 (Viscount Simon LC); Pan-American World Airways Inc v Department of Trade  1 Lloyd’s Rep 257, 260 (Lord Denning MR), 261–2 (Scarman LJ); JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  Ch 72, 164 (Kerr LJ); Re M and H (Minors) (Local Authority: Parental Rights)  1 AC 686, 721 (Lord Brandon); R v Director of Public Prosecutions, ex p Kebilene  2 AC 326, 340 (Lord Bingham MR); R v Lyons  1 AC 976, 987 (Lord Bingham), 995 (Lord Hoffmann); Moohan v Lord Advocate  AC 901, 923 (Lord Hodge); R (SG) v Secretary of State for Work and Pensions  1 WLR 1449, 1477 (Lord Reed), 1518 (Lord Kerr); Al-Saadoon v Secretary of State for Defence  EWCA Civ 811,  (Lloyd Jones LJ); R (Miller) v Secretary of State for Exiting the European Union  UKSC 5, –.
111 R v Lyons  1 AC 976, 987 (Lord Bingham), 995 (Lord Hoffmann). Also: R v Secretary of State for the Home Department, ex p Brind  1 AC 696, 747 (Lord Bridge); Re McKerr  2 All ER 409.
112 Maclaine, Watson & Co Ltd v Department of Trade and Industry  2 AC 418, 500 (Lord Oliver). Also: British Airways v Laker Airways  AC 58. The most obvious example of this is the Human Rights Act 1998 (UK), which gives qualified domestic effect to the ECHR.
113 Case C-87/75 Bresciani  ECR 129; Case C-104/81 Kupferberg (1982) 93 ILR 76. Also: European Communities Act 1972 (UK). On the constitutional modalities of British withdrawal, R (Miller) v Secretary of State for Exiting the European Union  UKSC 5. See now European Union (Withdrawal) Act 2018 (UK).
116 E.g. Re Westinghouse  AC 547 (regarding the Evidence (Proceedings in other Jurisdictions) Act 1975, implementing the unmentioned Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters, 18 March 1970, 847 UNTS 241).
117 For a case of an unimplemented treaty giving rise to domestic rights and obligations: Republic of Ecuador v Occidental Exploration & Production  EWCA Civ 656 (BIT arbitration). For BIT arbitration: chapters 28, 32.
118 Sinclair (1963) 12 ICLQ 508; Mann, Foreign Affairs in English Courts (1986) 97; Fatima (2005) 65–186; Gardiner (1995) 44 ICLQ 620; Neff in Shelton (2011) 620; Gardiner, Treaty Interpretation (2nd edn, 2015) 144–9.
119 On the primacy of the incorporating statute: Rey v Government of Switzerland  1 AC 54 (PC), 63 (Lord Steyn); R v Secretary of State for the Environment, Transport and the Regions, ex p International Air Transport Association  1 Lloyd’s Rep 242, 244 (Jowitt J); R (Al-Fawwaz) v Governor of Brixton Prison  1 AC 556, 606–7 (Lord Rodger); R (Al-Skeini) v Secretary of State for Defence  EWHC 2911 (Admin),  (Rix LJ).
120 Though the courts will, as a general rule, follow them: Neff in Shelton (2011) 620, 623. Further: R v Lyons  1 AC 976, 992. Also: Manchester City Council v Pinnock  2 AC 104, 125 (Lord Neuberger).
122 22 May 1969, 1155 UNTS 331, Arts 31–2. Further: chapter 16.
123 E.g. Fothergill v Monarch Airlines Ltd  AC 251, 282 (Lord Diplock); Republic of Ecuador v Occidental Exploration and Production  EWCA Civ 656, ; Czech Republic v European Media Ventures SA  EWHC 2851 (Comm), ; R v Asfaw  1 AC 1061, 1114–15 (Lord Mance); EN (Serbia) v Secretary of State for the Home Department  QB 633, 653 (Stanley Burnton LJ); R (ST) v Secretary of State for the Home Department  2 AC 135, 150–1 (–) (Lord Hope); Assange v Swedish Prosecution Authority  2 AC 471, 508 () (Lord Phillips), 517–18 (–) (Lord Kerr), 524 () (Lord Dyson); R (Adams) v Secretary of State for Justice  1 AC 48, 69 (Lord Phillips); Ben Nevis (Holdings) Ltd v Commissioners for HM Revenue & Customs  EWCA Civ 578,  (Lloyd Jones LJ); Al-Saadoon v Secretary of State for Defence  EWCA Civ 811,  (Lloyd Jones LJ).
124 R v Immigration Appeal Tribunal, ex p Shah  2 AC 629, 657 (Lord Hoffmann) (‘[a]s a general rule it is desirable that international treaties should be interpreted by the courts of all states parties uniformly’). Also: R v Asfaw  1 AC 1061, 1095 (Lord Hope).
125 Garland v British Rail Engineering Ltd  2 AC 751, 771 (Lord Diplock); R v Secretary of State for the Home Department, ex p Brind  1 AC 696, 748 (Lord Bridge); A v Secretary of State for the Home Department (No 2)  2 AC 221, 255 (Lord Bingham); R (Al-Skeini) v Secretary of State for Defence  1 AC 153, 192 (Lord Rodger); EN (Serbia) v Secretary of State for the Home Department  QB 633, 663 (Stanley Burnton LJ); Assange v Swedish Prosecution Authority  2 AC 471, 522 (Lord Dyson); Re McCaughey’s Application for Judicial Review  1 AC 725, 748–50 (Lord Phillips); R (Adams) v Secretary of State for Justice  1 AC 48, 69 (Lord Phillips). Cf R v Gul  AC 1260, 1286–7 (Lords Neuberger and Judge).
131 R v Secretary of State for the Home Department, ex p Brind  1 AC 696, 760 (Lord Ackner); Attorney-General v Associated Newspapers  2 AC 238, 261–2 (Lord Lowry); JA Pye (Oxford) Ltd v Graham  1 AC 419, 444 (Lord Browne-Wilkinson); R v Lyons  1 AC 976, 987 (Lord Bingham); Al-Saadoon v Secretary of State for Defence  3 WLR 503, 578 (Leggatt J); R (SG) v Secretary of State for Work and Pensions  1 WLR 1449, 1490 (Lord Hughes), 1519 (Lord Kerr).
133 R v Lyons  1 AC 976, 992 (Lord Hoffmann). Also: Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, 283 (Lord Goff); Al-Saadoon v Secretary of State for Defence  3 WLR 503, 578 (Leggatt J); R (SG) v Secretary of State for Work and Pensions  1 WLR 1449, 1490 (Lord Hughes), 1520 (Lord Kerr).
141 The antagonist of incorporation is the doctrine of ‘transformation’, under which custom will only become part of the law of England once codified in statute or in a prior authoritative judicial decision—a doctrine of stasis so far as the common law is concerned. English courts have subscribed to an incorporationist approach since the eighteenth century: O’Keefe (2008) 79 BY 7, 9–10; Lauterpacht (1939) 25 GST 51, 65, 75–6, 84, 86; Holdsworth, Essays in Law and History (1945) 266.
142  QB 529, 554; reiterated in R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) 126 ILR 727, 738; and as a general principle underlying R (European Roma Rights Centre) v Immigration Officer at Prague Airport  2 AC 1. Further: Neff in Shelton (2011) 620, 627.
145  1 AC 136, 155 (citations omitted). Also: Al-Saadoon v Secretary of State for Defence  3 WLR 503, 579 (Leggatt J); R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2010 (Admin),  (Lloyd Jones LJ).
150 R v Secretary of State for the Home Department, ex p Thakrar  QB 684, 702 (Lord Denning MR), 708–9 (Orr LJ); JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  Ch 72, 184–5 (Kerr LJ), cf 219–20 (Nourse LJ). Also: West Rand Central Gold Mining Co v R  2 KB 391, 409–12 (Lord Alverstone CJ).
152 R (Al-Saadoon) v Secretary of State of Defence  QB 486, 517 (Laws LJ), noted by O’Keefe (2009) 80 BY 451, 463. Similar terminology may be found in A v Secretary of State for the Home Department (No 2)  2 AC 221, 262 (Lord Bingham); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2048 (Admin), .
157  1 AC 136, 160–3. Also: ibid, 170–1 (Lord Hoffmann); 179 (Lord Mance). Another persuasive consideration for Lord Bingham was the fact that the incorporation of aggression into the common law would grant the courts the capacity to review the executive’s conduct of foreign affairs and the deployment of armed forces, areas traditionally considered non-justiciable: ibid, 162–3.
158  4 All ER 786, 790. Also: Mortensen v Peters (1906) 8 F (JC) 93 (Scottish High Court of Justiciary); Polites v Commonwealth (1945) 70 CLR 60; Roussety v The Attorney General (1967) 44 ILR 108.
167  3 All ER 961, 969–70; ibid, 968 (Lawton LJ). Also: Uganda Co (Holdings) Ltd v Government of Uganda  1 Lloyd’s Rep 481, 487 (Donaldson J), criticized by Crawford (1980) 51 BY 303, 325–6.
169 Also: I Congreso del Partido  1 QB 500, 518 (Robert Goff J); R v Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 1)  1 AC 61, 77 (Lord Slynn); R v Jones (Margaret)  QB 259, 273.
172 Council of Civil Service Unions v Minister for the Civil Service  AC 374, 398 (Lord Fraser), 408 (Lord Scarman), 411 (Lord Diplock), 418 (Lord Roskill); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs  1 WLR 2697, 2712–13, 2715–16 (Lords Carnwath and Mance); Youssef v Secretary of State for Foreign and Commonwealth Affairs  2 WLR 509, 520–1 (Lord Carnwath).
176 A v Secretary of State for the Home Department  2 AC 68, 146 (Lord Scott). Also: Cook v Sprigg  AC 572, 578; West Rand Central Gold Mining Co Ltd v R  2 KB 391, 408–9 (Lord Alverstone CJ); R v Ministry of Defence, ex p Smith  QB 517, 558 (Sir Thomas Bingham MR); R v Khan  AC 558, 581–2 (Lord Nolan); R (Campaign for Nuclear Disarmament) v The Prime Minister  EWHC 2777 (Admin), – (Simon Brown LJ).
186 R v Secretary of State for the Home Department, ex p Launder  1 WLR 839, 867 (Lord Hope); R v DPP, ex p Kebilene  2 AC 326, 367 (Lord Steyn). But the treaty must be the basis of the decision, not simply mentioned in passing by the decision-maker: R (Corner House Research) v Director of the Serious Fraud Office  1 AC 756, 851.
188  UKSC 3. It is not to be confused with what is sometimes referred to as the domestic act of state doctrine: cf Buron v Denman (1848) 2 Ex D 167; Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence  UKSC 1. In Lady Hale’s words, this applies to ‘sovereign acts [of the Crown] … committed abroad; in the conduct of the foreign policy of the state; so closely connected to that policy to be necessary in pursuing it; and at least extending to the conduct of military operations which are themselves lawful in international law’: ibid, . Generally: Perreau-Saussine (2007) 78 BY 176; McLachlan (2014) ch 7.
194 AM Luther v James Sagor & Co  3 KB 532, 548 (Warrington LJ); Buttes Gas and Oil Co v Hammer (No 3)  AC 888, 934 (Lord Wilberforce); Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)  2 AC 883, 922 (Lord Hope); Jones v Saudi Arabia  EWCA Civ 1394, ;  QB 699; Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2)  QB 458, 486 (Rix LJ).
198 R v Bow Street Magistrate, ex p Pinochet (No 1)  1 AC 61, 106 (Lord Nicholls); R v Bow Street Magistrate, ex p Pinochet (No 3)  1 AC 147, 269 (Lord Millett); Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2)  QB 458, 486 (Rix LJ); High Commissioner for Pakistan v Prince Mukkaram Jah  EWHC 1465 (Ch),  (Henderson J). On state immunity: chapter 22.
199 R v Bow Street Magistrate, ex p Pinochet (No 1)  1 AC 61, 118 (Lord Steyn); cf ibid, 103 (Lord Lloyd, diss). Cf Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs  1 AC 614, 639 (Lord Kerr); R (Khan) v Secretary of State for Foreign and Commonwealth Affairs  1 WLR 872, 884–8 (Lord Dyson MR).
201  2 AC 883, 1102; O’Keefe (2002) 73 BY 400. Also: Jones v Saudi Arabia  EWCA 1394,  (Mance LJ); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1598, – (Lord Phillips MR).
207  UKSC 3,  (Lord Mance, but leaving open ‘a clear governmental indication as to real and likely damage to United Kingdom foreign policy or security interests’: );  (Lord Sumption).
208  UKSC 3,  (Lord Mance) (applicable to property claims only); – (Lord Neuberger); –, – (Lord Sumption) (applicable to all claims including personal injury, but subject to an exception for breaches of peremptory norms, notably torture).
212 1 Restatement Third §§111–15; draft Restatement Fourth, Treaties (2017) §§101–13; Paust, International Law as Law of the United States (2nd edn, 2003); Dubinsky in Shelton (2011) 631; Bradley, International Law in the US Legal System (2nd edn, 2015).
216 E.g. Iwasawa (1986) 26 Va JIL 635; Paust (1988) 82 AJIL 760; Buergenthal (1992) 235 Hague Recueil 303; Vásquez (1995) 89 AJIL 695; Hathaway (2008) 117 Yale LJ 1236; Bederman (2008) 102 AJIL 528; Bradley (2008) 102 AJIL 540; Charnovitz (2008) 102 AJIL 551; Vásquez (2008) 102 AJIL 563; Wuerth (2009) 13 Lewis & Clark LR 1; Huang (2011) 79 Fordham LR 2211; Sloss (2012) 53 Harv ILJ 135; Iwasawa (2016) 54–90.
221 US v Postal, 589 F2d 862, 877 (5th Cir, 1979). This approach was favoured by the dissenters in Medellin, who urged reliance on a ‘practical, context-specific’ methodology to determining self-execution: 552 US 491, 549 (2008) (Justice Breyer, diss). This was rejected by the majority on the basis that it was indeterminate and would ‘assign to the courts—not the political branches—the primary role in deciding when and how international agreements would be enforced’: ibid, 516. Further: Iwasawa (2016) 64–86.
223 552 US 491, 511 (2008). Also: Sanchez-Llamas v Oregon, 548 US 331, 354 (2006); Leal Garcia v Texas, 131 S Ct 2866, 2867 (2011). Cf Medellin v Dretke, 544 US 660, 693–4 (2005) (Breyer J, diss), arguing that Art 94 of the Charter does require internal compliance by US domestic courts with decisions of the International Court.
225 1 Restatement Third §111, comment 5. Also: Henkin, Foreign Affairs and the United States Constitution (2nd edn, 1996) 20. Other commentators argue for a presumption against self-execution: e.g. Yoo (1999) 99 Col LR 1955, 2218. Also: Iwasawa (2016) 67–8; ESAB Group Inc v Zurich Insurance PLC, 685 F3d 376, 387 (4th Cir, 2012).
226 552 US 491, 518, 520 (2008); Bradley (2008) 102 AJIL 540, 545–7; Crootof (2011) 120 Yale LJ 1784, 1787. Also: Al-Bihani v Obama, 619 F3d 1, 15–16 (DC Cir, 2010). Draft Restatement Fourth, Treaties (2017) §110, comment 3, denies that there is a presumption either way.
228 Since Medellin, the Senate has taken care to state in both its reports and in declarations, included in all resolutions of advice and consent, whether treaties (or specific provisions) are or are not self-executing: Crook (2010) 104 AJIL 100; Crook (2011) 105 AJIL 124; Iwasawa (2016) 75.
230 E.g. US v Yousef, 327 F3d 56, 92 (2d Cir, 2003); US v Ali, 718 F3d 929, 942 (DC Cir, 2013). Cf Eskridge, Frickey, & Garrett, Statutes and the Creation of Public Policy (4th edn, 2007) 884; Owner-Operator Independent Drivers Association v US Department of Transportation, 724 F3d 230, 234 (DC Cir, 2013); Bean  BYU LR 1801.
231 Crootof (2011) 120 Yale LJ 1784, 1796–801. Thus, the VCLT, signed but not ratified by the US, is applied in US courts: e.g. Weinberger v Rossi, 456 US 25, 29 (1982); Committee of US Citizens living in Nicaragua, 859 F2d 929, 940–1 (DC Cir, 1988).
244 28 USC §1350. Further: Filartiga v Pena-Irala, 630 F2d 876 (2d Cir, 1980). Also: Torture Victims Protection Act 1991, which provides a cause of action for any victim of torture or extrajudicial killing wherever committed: 106 Stat 73.
250 133 S Ct 1659, 1669 (2013); cf ibid, 1671 (Breyer J). It was predicted that Kiobel would almost completely block ATS suits against multinational corporations: Ryngaert, Jurisdiction in International Law (2nd edn, 2015) 139. The Supreme Court came to the aid of the prediction in Jesner v Arab Bank Plc, 584 US __ (2018), holding that foreign corporations may not be defendants in ATS cases in any event. Further: chapter 21.
254 Zivotofsky v Secretary of State, 571 F3d 1227 (DC Cir, 2010), concerning a statute passed by Congress requiring that ‘Israel’ be inserted as the place of birth for every American child born in Jerusalem. Further: Crook (2010) 104 AJIL 278; Crook (2011) 105 AJIL 814. The Supreme Court did not apply the principle; the question of Jerusalem’s political status was distinguished from the interpretation and constitutionality of the statutory right: Zivotofsky v Secretary of State, 132 S Ct 1421, 1427 (2012); cf ibid, 1437–41 (Breyer J, diss). Also: Crook (2012) 106 AJIL 644. The case returned to the Supreme Court in Zivotofsky v Kerry, 576 US __ (2015): it was decided that the statute was an interference with the President’s exclusive power of recognition.
257 591 F Supp 1332 (1984). Also: Gilligan v Morgan, 413 US 1 (1973) (composition, training, equipping, and control of the National Guard non-justiciable); Can v US, 14 F3d 160 (2d Cir, 1994) (issues of succession arising from assets of a foreign state non-justiciable); Corrie v Caterpillar, 503 F3d 974 (9th Cir, 2007) (provision of military assistance by US to foreign states a political question).
263 Ibid, 251–2. Also: Outjen v Central Leather Co, 246 US 297, 300–4 (1918) (stressing the need to protect comity and ‘the peace of nations’); Ricaud v American Metal Co, 246 US 304, 309 (1918) (‘to accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction, rather it is an exercise of it’).
271 Banco Nacional de Cuba v Sabbatino, 376 US 398, 428 (1964); Kalamazoo Spice Extraction Co v PMG of Socialist Ethiopia, 729 F2d 422 (6th Cir, 1984); Konowaloff v The Metropolitan Museum of Art, 702 F3d 140, 145 (2d Cir, 2012).
286 E.g. Re Self-Determination of the Comoros Islands, 30 December 1975, Rec 41, 74 ILR 91; Nationalization Law, 16 January 1982, Rec 18, 75 ILR 700; Nationalization Law (No 2), 11 February 1982, Rec 31, 75 ILR 700; Law on the Evolution of New Caledonia, 8 August 1985, Rec 63; Law on the Evolution of New Caledonia (No 2), 23 August 1985, Rec 70.
292 23 May 1949; amended by the Unification Treaty, 31 August 1990, 30 ILM 457. The most recent (58th) amendment occurred on 27 July 2010. On reunification: Harris (1991) 81 Geo Rev 170. Notable considerations of Art 25 by the Constitutional Court include: Philippine Embassy, 46 BVerfGE 342 (1977), 65 ILR 146; National Iranian Oil Co, 64 BVerfGE 1 (1983), 65 ILR 215; 75 BVerfGE 1 (1988) (further: 2 BvR 38/06 (2007)); Diplomatic Immunity (Syria), 96 BVerfGE 68 (1997), 115 ILR 595; 117 BVerfGE 141 (2006); Argentine Necessity, 118 BVerfGE 124 (2007), 138 ILR 1; Boere v Germany, 2 BvR 148/11 (2011).
296 Scholars differ on whether peremptory norms are subject to the same limitations. It seems arguable that they may be considered themselves as ‘fundamental principles of the constitutional order’: Cataldi in Shelton (2011) 328, 346, 349–52. Also: Constitutional Court, 29 December 1988, Judgment No 1146; Ferrini v Federal Republic of Germany, Corte di Cassazione, 11 March 2004, Judgment No 5044, 128 ILR 659.
299 E.g. Military Prosecutor v Albers, Corte di Cassazione, 9 August 2012, Case No 32139/2012, ILDC 1921 (IT 2012); Germany v De Guglielmi, Court of Appeal, 14 May 2012, Judgment No 941/2012, ILDC 1905 (IT 2012); Frascà v Germany, Corte di Cassazione, 21 February 2013, Case No 4284/2013, ILDC 1998 (IT 2013); Germany v Ferrini, Corte di Cassazione, 21 January 2014, Judgment No 1136, ILDC 2724 (IT 2014).
302 Constitutional Court, 22 October 2014, Judgment No 238. Further: various items (2014) 24 It YIL 1–60; Cannizzaro (2015) 98 Rdi 126; Pavoni (2015) 109 AJIL 400; various items (2016) 14 JICJ 573–636.
304 On general principles: Re Hartmann and Pude, Constitutional Court, 18 April 1967, Judgment No 48, 71 ILR 232; Zennaro, Constitutional Court, 8 April 1976, Judgment No 69, 77 ILR 581; Constitutional Court, 27 April 1994, Judgment No 168. On peremptory norms: Ferrini v Federal Republic of Germany, Corte di Cassazione, 11 March 2004, Judgment No 5044, 128 ILR 659; Lozano v Italy, Corte di Cassazione, 24 July 2008, Case No 31171/2008, ILDC 1085 (IT 2008); Corte di Cassazione, 13 January 2009, Judgment No 1072.
308 Tikhomirov in Shelton (2011) 517, 523. But cf Danilenko (1999) 10 EJIL 51, 57–9, identifying an emerging trend in the application of custom in the jurisprudence of the Russian Constitutional Court. Danilenko goes on to note, however, that ‘ordinary’ Russian courts have much less experience in applying custom, and are more likely to rely on treaties and ‘commercial customs in the sphere of international trade’ (ibid, 58–9). Further: Marochkin (2007) 6 Chin JIL 329, 344, who despite his initial pessimism, nonetheless concludes ‘we can speak [generally] about a positive attitude of the Court system towards international law’.
314 Decaux in Shelton (2011) 207, 216. This much is confirmed by the Conseil Constitutionnel: Treaty establishing a European Constitution, 19 November 2004, Rec 173. The Conseil d’État only conceded that Art 55 applies to legislation that postdates the treaty in question in 1989 (Re Nicolo (1989) 93 ILR 286). In Sarran, the Conseil held that the superiority of treaties did not extend to provisions of a constitutional character:  Rec Lebon 368. Also: Syndicat national de l’industrie pharmaceutique  Rec Lebon 624.
316 The use of this procedure is not uncommon. The Treaty of Maastricht was the subject of three referrals: one presidential leading to Treaty on European Union (1992) 93 ILR 337; a senatorial referral leading to Treaty on European Union (No 2) (1992) 98 ILR 180; and one referral by the National Assembly on the referendum law authorizing ratification, leading to Treaty on European Union (No 3), 23 September 1992, Rec 94. Further: Decaux in Shelton (2011) 207, 217. Generally: Neuman (2012) 45 Cornell ILJ 257, 267–304, 315–19, 322–49.
319 Abortion Law (1975) 74 ILR 523. When acting as electoral judge, however, the Conseil will assess the conformity of domestic laws to international treaties (Elections of the Val d’Oise (1988) 111 ILR 496).
322 National Federation of Guardianship Associations  Rec Lebon 781; Prefect of La Gironde v Mhamedi (1992) 106 ILR 204 (suspension of application of treaty must also be subject to publication). Further: Decaux in Shelton (2011) 207, 226.
332 There is some disagreement as to how this is brought about. Total incorporation is seen as too radical, whereas transformation tends to decontextualize the treaty from the international sphere. The approach most germane to Art 59(2) is that of ‘execution’ which characterizes the legislative ratification of the treaty as a legislative directive to follow the provisions of the treaty as international law within the domestic order: Paulus (2009) 209, 217–18.
339 The court upheld this realignment with Strasbourg in principle in 120 BVerfGE 180 (2008); it was then taken (again) to the ECtHR (Von Hannover v Germany (No 2)  ECtHR 60641/08) which found the Federal Constitutional Court’s approach consistent with the ECHR. Also: Von Hannover v Germany (No 3)  ECtHR 8772/10. Similar developments have occurred in preventive detention cases: e.g. 109 BVerfGE 133 (2004), overruled in M v Germany  ECtHR 19359/04, in turn implemented in 128 BVerfGE 326 (2011). Also: OH v Germany  ECtHR 4646/08; Schmitz v Germany  ECtHR 30493/04. Further: Kirchhof (2011) 64 NJW 3681.
344 E.g. Constitutional Court, 24 October 2007, Judgment 248; Constitutional Court, 24 October 2007, Judgment 249; Constitutional Court, 4 December 2009, Judgment 317; Constitutional Court, 18 July 2013, Judgment 210; Constitutional Court, 25 July 2011, Judgment 245; cf Constitutional Court, 28 November 2012, Judgment 264.
347 Plenum of the Supreme Court of the Russian Federation, Decree No 5, 10 October 2003, §8 (‘The rules of the effective international treaty of the Russian Federation, the consent on the mandatory nature of which was issued in the form of a federal law, shall be given priority against the laws of the Russian Federation’). Also: Plenum of the Supreme Court of the Russian Federation, Decree No 8, 31 October 1995. If consent to a treaty was not given by way of ratification in the form of a federal law, then treaty rules will only have priority with respect to subordinate normative-legal acts issued by the governmental agency which concluded the treaty: Butler in Sloss (2009) 410, 421.
354 Plenum of the Supreme Court of the Russian Federation, Decree No 5, 10 October 2003, §4. In 2007 Federal Law No 101-фз of 15 July 1995 was amended to give Rosatom, a state-owned corporation, treaty-making capacity: Butler (2008) 102 AJIL 310; Butler (3rd edn, 2009) 696.
364 Reference is sometimes made to Art 93 of the Constitution, which provides that ‘[p]rovisions of treaties and resolutions by international institutions that are binding on all persons by virtue of their contents shall become binding after they have been published’ as providing a constitutional basis for the validity of treaties, but this is better characterized as going to their direct effect within municipal law: Nollkaemper in Sloss (2009) 326, 331–3.
369 Law on the Approval and Promulgation of Treaties, Stb 1994, 542, Art 1 (Law on Treaties). Also: Klabbers (1995) 44 ICLQ 629. The government is not required to inform Parliament as the content of the treaty in question, merely its progress, though this does not prevent Parliament from requesting that further information be provided.
372 The justification for this is rooted in the separation of powers; were vague or hortatory provisions to be given supremacy, this would give too much power to the courts to override the codified will of the legislature: Nollkaemper in Sloss (2009) 326, 332–5.
402 Basic Law, Art 2(1) refers to ‘freedom of personality’. The Federal Constitutional Court has interpreted this as including any and all things that a person might wish to do: 6 BVerfGE 32, 41 (1957). Further: Currie (1999) 165–6.
411 Relations Treaty between the FRG and GDR, 36 BVerfGE 1 (1973), 78 ILR 149. The Court gave a restrictive interpretation to the agreements so as to avoid the full recognition of the GDR in international law.
421 President of the Council v Marcović, Corte di Cassazione, 5 June 2002, Judgment No 8157, 128 ILR 652, 655–6. Frulli argues that while the initial declaration of war may not be justiciable, those individual acts performed in the prosecution of armed conflict ought to be, with any other alternative depriving a plaintiff of his or her rights under arts 2 and 24 of the Constitution. Moreover, this argument is consistent with representations previously made by the Italian government before the ECtHR: Frulli (2003) 1 JICJ 406, 412–14. This distinction was later applied and individual acts were found to be justiciable: Ferrini v Federal Republic of Germany, Corte di Cassazione (2004) 128 ILR 658, 665–6.
422 There is here a certain tension with art 2 of the Constitution, which provides that ‘[t]he Republic recognizes and guarantees the inviolable rights of man, as an individual, and in the social groups where he expresses his personality, and demands the fulfilment of the intransgressible duties of political, economic, and social solidarity’. This is paired with art 24, which itself provides the right to an effective judicial remedy for the violation of fundamental rights and interests. Further: Frulli (2003) 1 JICJ 406, 412.
432 Additionally, the court managed to avoid giving substantive consideration to the human rights issues raised by the case, by referring them to unspecified further proceedings before the criminal courts: Pomeranz (1997) 9 RCEEL 9, 26–8.
435 E.g. Foundation for the Prohibition of Cruise Missiles, NJ (1991) No 248, 106 ILR 400, concerning an attempt by a community organization to pre-empt the Dutch government from permitting US cruise missiles to be based on Dutch soil. In Germany, the question was considered effectively non-justiciable: Cruise Missiles (Danger to Life), 66 BVerfGE 39 (1983), 106 ILR 353. The Dutch court did not even refer to the doctrine when dismissing the application.
438 Here, the interlocutory judge paid particular attention to the effects that such an order, if granted, would have on US–Dutch relations and Dutch foreign policy as a whole: Hague City Party v The Netherlands, The Hague District Court, 4 May 2005, Case No KG 05/432, ILDC 849 (NL 2005), 3.4–3.5, 3.8.
441 Urgenda Foundation v The Netherlands, The Hague District Court, 24 June 2015, Case No C/09/456689, ILDC 2456 (NL 2015); upheld on appeal, 9 October 2018 (Hague CA). Further: de Graff & Hans (2015) 27 JEL 517; Lambrecht & Ituarte-Lima (2016) 18 Env LR 57; Cox (2016) 34 JENRL 143; Roy & Woerdman (2016) 34 JENRL 165.
443 Monists underestimate this aspect of the matter or gloss it over with conceptualism. The fact is that national law is more viable in terms of organization whereas international law is less of a system in this sense. From this perspective, there is some substance in the view that international law derives from the activities of the constitutional organs of states. International law has often been dependent on state machinery for its enforcement. Although there has been a strengthening of international institutions, especially of dispute settlement (see chapter 32), international law remains largely dependent on state machinery for enforcement. Further, many aspects of international law are to be implemented primarily at a domestic level and international institutions play a secondary role. This view, characterized as monism-in-reverse, was supported by e.g. Decencière-Ferrandière (1933) 40 RGDIP 45. Critics have tended to caricature this position, but it accords with widely held views that international law is international and not dependent on a supranational coercive order.