The Relationship between International Law and National Law - Essay Example

?The Relationship between International Law and National Law within the Context of the UK’s Constitution The principles applied by international tribunals relative to the relationship between international and national law are primarily guided by identifying a balance between the practices of states and the concept of opinio juris.1 What transpires is a reciprocal relationship between national courts and international tribunals. National courts generally interpret and apply international treaties, customary international law and principles of international law. International tribunals in turn attempt to fill gaps in customary international law by reference to national case law and codes.2 This means that international tribunals identify prevailing state practices that are essentially transferred over to international customary law. The result is often referred to as crystallization.3 In general, national courts are not expected to apply national legislation in a way that is inconsistent with international treaties, but there is no expectation that the inconsistent legislation is deemed null and void.4 This may sound simple enough. However, since law is not a science, national courts are not always consistent in their respective approaches to customary international law.5 Essentially, the problem begins with national constitutions. National courts must first begin by reference to their own constitutions.6 National constitutions determine the status of international law within the national legal order.7 In this paper, the difficulties implicit in national constitutions in shaping and defining the relationship between national law and international law are examined in the context of the UK’s constitution. The extent to which the reciprocal application of international and national laws by national courts and international tribunals function effectively, is compromised by the interpretation of and application of international treaties at the domestic level. An obvious difficulty arises when a domestic constitution incorporates international treaties and interprets them in accordance with domestic practices and policies. As there are divergent political and legal cultures worldwide, interpretations and applications of international treaties may differ from one country to another. Complicating matters, some constitutions may even fail to incorporate international treaties.8 The UK provides an even more interesting enigma in that it does not have a written constitution. The UK’s constitution is comprised of a convention, common law and various statutory instruments.9 The difficulty for the UK, is manifested by the fact that state constitutions will generally direct how and where an international treaty stands in relation to national statutes. For instance, if the treaty is to prevail over national statutes where there is a conflict between the two, the Constitution will make this declaration. The UK’s constitutional conventions however, do not make any such declaration but merely establishes that Parliament remains supreme and has the ability to make and repeal any law.10 The UK’s unwritten constitution is usually characterized as dualist in nature, although there is evidence that the UK’s constitution is also monist in nature.11 By way of background, the relationship between international law and national law is fraught by two primary concerns. The first is theoretical in nature and commands attention to whether or not pursuant to the monist doctrine, both legal regimes form part of the international legal regime, or whether they are two different legal regimes according to the dualist doctrine. The second concern is practical in nature and involves ascertaining the approach for resolving conflicts in international and national law.12 The theoretical and practical implications for the relationship between national and international law from the perspective of the UK’s constitution are compromised in that the UK’s national courts do not have a constitutional document by which to determine the interpretation and application of international law. Even so, UK courts have the ability of draw on other sources of statutory law as well as constitutional conventions and principles established by virtue of the common law. It therefore follows that unless there is a specific Act of Parliament, the UK’s constitution as it stands, is essentially dualistic in nature. However, the accession to the European Community on 1st January 197313, was accompanied by some diversion toward a more monist constitution. Consistent with its accession to the European Community, the UK implemented the European Communities Act 1972 which essentially firmly established a monist relationship between UK’s national law and European Community law. The 1972 Act ceded Parliamentary sovereignty, which is the bedrock of the UK’s constitutional conventions to European Community law. This is particularly evident in Section 2(1) of the 1972 Act which provides that the UK is required to incorporate all European Community treaties and laws, even future treaties and laws, into national legislation.14 Pursuant to Section 2 of the European Communities Act 1972, European Community law is deemed to be legally enforceable source of UK law.15 As Konstadinides explains: When Community law addresses a particular subject-matter either within the EC Treat or in the form of a Regulation, it overrides any inconsistent domestic law including an Act of Parliament.16 Ultimately what this means is that as far as European Community law is concerned, despite the UK’s lack of a written or codified constitution, it has still managed to integrate a monist approach with respect to the relationship between UK law and community law. Aside from the relationship between UK law and Community law, the monist theory loses currency in the relationship between UK law and international law. Parliamentary sovereignty and thus the UK’s constitutional conventions dictate that any law enacted by Parliament prevails over any other international laws. Any international rule of law is bereft of application under UK’s national legal system unless it has been incorporated into domestic statutes. Kumar explains that: In the absence of statutory transformation, rules contained in an international treaty have no legal force in the UK.17 Therefore, with the exception of European Community law, the relationship between national law and international law under the UK’s legal order can be best described as dualistic. The dualistic nature of the UK’s constitutional order places significant restraints on the courts’ ability to transpose domestic laws into the international legal order. Likewise, the dualistic nature of the UK’s legal order constrains the national courts’ ability in transpose international customary laws into the UK’s national legal order.18 According to Kumar, the national courts of the UK have subscribed to specific methods for interpreting national laws with respect to international treaties.19 One such method is described by Kumar as follows: Where possible, a statute will be construed to give effect to the UK’s international legal obligations, but in all cases rules emanating from a treaty will give way to a contrary intention expressed by Parliament in its legislation.20 Kumar also maintains that in the field of human rights, the courts of the UK have been persistent in their refusal to permit the contents of the European Convention on Human Rights to prevail over the application and interpretation of national laws.21 Although this perception was based on a House of Lords’ decision that predated the Human Rights Act 1998, it is instructive. The case influencing Kumar’s remarks was R v Secretary of State for the Home Department ex parte Brind [1991]. This case arose in response to directives issued by the Home Secretary banning the publication of statements proffered by delegates from Northern Irish organizations. The complainants argued that the Home Secretary’s directives contravened Article 10 of the European Convention with respect to freedom of expression. It was also alleged that the Home secretary erred in law by not taking into consideration the Convention when he issued those directives.22 The House of Lords did not agree with the complainants’ submissions. The House of Lords ruled that while the UK’s courts are at liberty to interpret national statutes so that they were consistent with the Convention wherever possible, it could not be assumed that there could be judicial review of administrative decisions on the grounds that the decision was inconsistent with the Convention. With respect to the claim that the Home Secretary erred in law in not considering Article 10, Ackner LJ stated that: If the Secretary of State was obliged to have proper regard to the Convention, i.e. to conform with Article 10, this inevitably would result in incorporating the Convention into English domestic law by the back door. It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were, “necessary in a democratic society.”23 It was not until the European Convention on Human Rights was incorporated into UK law by virtue of the Human Rights Act 1998 that the courts treated it as a part of the national legal order.24 The Human Rights Act 1998 secures for UK citizens the direct application and protection of the human rights incorporated under the European Convention on Human Rights. It accords citizens remedial recourse in domestic courts.25 Section 3(1) of the Human Rights Act 1998 also instructs that all national laws are to be construed in a such as to reconcile those laws with the rights provided for under the Convention.26 As demonstrated by the House of Lords decision in R v Secretary of State for the Home Department ex parte Brind, in the absence of a legislative provision, or more especially, an Act of Parliament, the European Convention on Human Rights could not be relied on as a part of the UK’s law. No doubt, has this case been heard following the implementation of the Human Rights Act 1998, the House of Lords would have applied Article 10 to the Home Secretary’s obligations. Section 6 of the Human Rights Act 1998 specifically provides that a public officer may not conduct his duties in a manner inconsistent with rights under the Convention.27 Put another way, if an international treaty or any other aspect of international law is not incorporated by Acts of Parliament, the constitutional concept of Parliamentary sovereignty dictates that those laws have no application in UK courts. The point is emphasized in the J. H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418. In this case, Oliver LJ explained that treaties “are not self-executing”.28 In other words, a treaty does not become a part of English law until such time as it is implemented via an Act of Parliament.29 Clearly, the UK’s constitutional conventions spearheaded by the concept of Parliamentary sovereignty dictates that the UK is a dualist nation with respect to its relationship with international law. Specifically, what this means is that UK law exists separate and apart from international law. International law will not be a part of national laws if it does not form a part of national legislation. The dualistic nature of the UK’s relationship with international law is arguably a result of the absence of a written or codified constitution. State constitutions typically set out and describe the state’s responsibilities and rights in connection with its citizens. These constitutions also set out what is the supreme law of the land and often provides for the incorporation into national laws all current and future treaties and conventions that the state signs.30 For instance, Article VI of the US Constitution provides that all treaties properly adopted by the US, together with other legislative provisions automatically form a part of the US’s supreme law with the result that the judiciary is bound to give them effect.31 The US Constitution therefore makes allowances for the US to function as a monist state with respect to its relationship with international law. Since the UK does not have a codified constitution, it does not permit sweeping codes that reflect “entrenched rights” or purports to bind future parliaments.32 Again the European Communities Act 1972 must be looked upon as an exception to the concept of Parliamentary sovereignty. It does purport to bind future parliaments by making allowances for future European Community conventions. By the same token the 1972 Act also makes allowances for entrenched rights. In the final analysis however, aside from the UK’s relationship with the European Community which is monist in nature, the UK occupies a dualist approach to its relationship with international law. Bibliography Textbooks Ansell, C. and Palma, G. Restructuring Territoriality: Europe and the United States Compared. (Cambridge University Press 2004). Anthony, G. UK Public Law and European Law. (Hart Publishing 2002). Doria, J.; Grasser, H. and Bassiouni, M. The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko. (BRILL 2009). Ewing, K. ‘The Human Rights Act and Parliamentary Democracy.’ (January 1999) 62(1) The Modern Law Review, 79-99. Goldsworthy, J. Parliamentary Sovereignty: Contemporary Debates. (Cambridge University Press, 2010). Kaczorowska, A. Public International Law. (Taylor and Francis 2010). Konstadinides,T. Division of Powers in European Union Law. (Kluwer Law International 2009). Kumar, A. Human Rights. (Sarup and Sons 2002). Martin, F. The Constitution as Treaty. (Cambridge University Press 2007). Tarr, G.; Williams, R. and Grad, F. State Constitutions for the Twenty-First Century. (SAGE 2006). Vandamme, T.; Reestman, J. and van Hogendorp, G. Ambiguity in the Rule of Law. (Europa Law Publishing 2001). Articles/Journals Denza, E. ‘The Relationship between International and National Law’. Cited in M.D. Evans (ed) International Law, (Oxford University Press, 2010). Ginsburg, T.; Chernykh, S. and Elkins, Z. ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law.’ (2008) 1 University of Illinois Law Review, 201-238. Slaughter, A. ‘International Law in a World of Liberal States.’ (1995)6 European Journal of International Law, 503-538. Vereshchetin, V. ‘New Constitutions and the Old Problem of the Relationship between International Law and National Law.’ (1996) 7(1) European Journal of International Law, 29-41. Table of Cases J. H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418. Prosecutor v Kuprekic et al (Case No. IT-95-16 T, January 2000). R v Secretary of State for the Home Department ex parte Brind [1991] 1 All ER 720. Table of Statues European Communities Act 1972. Human Rights Act 1998. US Constitution, 1787 (as Amended). Read More