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International Law and Domestic Implementation

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Mario Prost

on 3 November 2010

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Transcript of International Law and Domestic Implementation

International Law and Domestic Implementation How do treaties and customs apply in municipal law? Can we, as individuals, use international law in domestic courts? Why should we care? The starting point: the principle of supremacy Negative dimension
Positive dimension States cannot rely upon their domestic constitution, or their
municipal laws, to evade their international obligations Alabama The 1872 Alabama Arbitration
(US v GB) “The government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed” (Harris at 63)
The obligation to make all necessary changes to domestic law
to ensure full compliance with international obligations Exchange of Greek and Turkish Populations (PCIJ 1925)
“a state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken” (Harris at 64-5) The two constitutional traditions Monism Dualism International law and domestic law form a single legal order
No need for 'incorporation' of international rules in municipal law International law is supreme
But it must be 'incorporated' into the domestic legal order to be fully effective International law in English Courts
Treaty law Dualism
The Parlement Belge (1879) To apply a treaty directly ‘would be a use of the treaty-making prerogatives of the crown […] without precedent, which would be contrary to the law of the constitution’  (Harris at 76-7) Customary law Monism
Blackstone (Commentaries): ‘the law of Nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and is held to be a part of the law of the land’
R v Keyn (1876): a dose of dualism?
Ex parte Pinochet 1999: monism confirme Lord Loyd: “well established principles of customary international law … form part of the Common law of England
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