Professional Documents
Culture Documents
Relationship
Between
International
and
Municipal
Law
2 partI
The Law
of Nations
The
primary
question
arising concerning the relations between customary
international law and municipal law is the degree to which rules of
international law have
been incorporated/absorbed into municipal law so that they have become part of
the law of the land, with little conflict to be expected in the application or enforcement of the international law norm.
Anglo-American legal opinion has long accepted that customary international
law was part of the law of the land and was enforced, accordingly, by
domestic authorities (doctrine of incorporation). For Great Britain, this position
was laid down in a now-classic case:
W
WEST RAND CENTRAL GOLD MINING CO., LTD, v. THE KING
Great Britain, Kings Bench Div., 1905 (1905) 2 K.B. 391
The company was a British
concern operating a gold mine in the
Transvaal, South Africa. In October 1899,
a quantity of gold valued at 3,804 was
seized from the company by officials of
and by order of the South African
Republic. The company claimed that under
the laws of the Republic, the government
had to return to the owners either the
seized gold or its value. Neither action
was taken, however, as the South African
Republic was conquered in the war that
started in October 1899 and became a
part of the British Empire under the terms
of a proclamation dated September 1,
1900. The company sought to recover the
gold or its value from the British
government by a petition of right, arguing
that the government had succeeded to all
duties, rights, property, and obligations of
the defunct South African Republic by virtue of the conquest and annexation of that
republic.
ISSUES (1) Whether under international
law the sovereign of a conquering state is
liable for the obligations of a conquered
state;
(2)Whether international law forms part of
the law of Great Britain;
(3)Whether the rights and obligations which
were binding on the conquered state had
to be protected and could be enforced by
the domestic courts of the conquering
state.
DECISION Judgment for the Crown.
As to issue (1): The sovereign of a conquering state is free to decide which
FACTS
then good faith should prevent repudiation. themselves sufficient. They must have
But silence by the conquering state cannot received the express sanction of interbe accepted as confirmation and adoption national agreement or have gradually
of all liabilities of the conquered state.
grown
to be aand
part
of international law by
International
Municipal
(2)It is true that whatever has receivedchapter
the 3 their
frequent
practical
recognition in
common consent of civilized nations must dealings among various nations.
Law
3 of nations
have received the consent of Great Britain,
The expression the law
and that to which the latter had assented forms a part of the law of England, ought
along with other nations in general could not to be construed so as to include as
properly be called international law. As part of the law of England opinions of
such it will be acknowledged and applied textwriters upon a question as to which
by British courts when legitimate occasion there is no evidence that Great Britain has
arises for those courts to decide questions ever assented, and a fortiori if they are
to which doctrines of international law are contrary to the principles of her laws as
relevant. But any doctrine so invoked declared by her Courts.
must be one really accepted as binding
(3) The obligations of conquering states
between nations, and the international law with
regard
to
private
property,
sought to be applied must, like anything particularly land as to which the title was
else, be proved by satisfactory evidence. perfected before conquest, are entirely
The latter must show either that the different from obligations arising out of
particular proposition put forward has been personal contracts. Cession of territory
recognized and acted on by England or does not mean the confiscation of private
that it is of such a nature and has been so property of individuals. The question of
widely and generally accepted that it can the adoption by the conquering state of
hardly be supposed that any civilized state contractual obligations of the conquered
would repudiate it. The mere opinions of state toward individuals is an entirely
jurists, however eminent or learned, that it different matter.
ought to be so recognized, are not in
More recently, Lord Atkin stated in connection with Chung Chi Cheung v.
The King (see Chapter 17) that
the Courts acknowledge the existence of a body of rules which nations accept
among themselves. On any judicial issue they seek to ascertain what the relevant rule is, 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 or
finally declared by their tribunals.
The traditional theory of the absorption of international law in the domestic
law of a state, illustrated by the West Rand Central Case, has been supplanted by
the more up-to-date British theory of transformation, as expressed by Lord
Denning in
Trendtex Trading Corporation, Ltd. v. Central Bank of Nigeria^ in 1977:
Seeing that the rules of international law have changedand do change
and that the courts have given effect to the changes without any Act of
Parliament, it follows to my mind inexorably that the rules of international
law, as existing from time to time, do form part of our English law. It
follows, too, that a decision of this court, as to what was the ruling of
international law 50 or 60 years ago, is not binding on this court today.
International law knows no
*U. K, Court of Appeal, Civil Division, Jan. 13, 1977 [1977], All E.R. 881, reported in 72
AJIL 417,418 (1978).
chapter 5
partI
4See Henkin, Foreign Affairs and the Constitution (1972), 221. See
also the interesting papers on May the President Violate Customary
International Law? in 80 AJIL 913 (1986) and id., 81, 377 (1987),
and Pausts dissenting The President Is Bound by International Law.
id.
5The Paquete Habana; The Lola, U.S. Supreme Court 1900, 175 U.S.
677; see also the Case Abstract below.
partI
11
partI
The Law of
Nations
FACTS Bill in equity brought by United States, and provided for
the state of Missouri to prevent a specific closed seasons and other
game warden of the United forms of protection for migratory
States from attempting to enforce birds. Both countries agreed that
the Migratory Bird Treaty Act of they would make, or submit to
July 3, 1918, and the regulations their
law-making
bodies,
made under that act by the proposals to carry out the
Secretary of Agriculture.
provisions of the treaty. In
Congress had passed an act implementation of the agreement,
that sought to regulate the Congress passed the Migratory
hunting of migratory birds by Bird Treaty Act of 1918,
providing closed seasons and authorizing,
among
other
other forms of protection. That provisions, the Secretary of
act had been held by a U.S. Agriculture to issue regulations
District Court to contravene the compatible with the terms of the
provisions of the Constitution as treaty. These regulations were
an invasion of the reserved issued in July and October of
powers of the states (United 1918. When Holland, a United
States v. Shauver, 214 F. 154; States game warden, attempted to
United States v. McCullagh, 221 enforce the federal regulations,
F. 288).
the state of Missouri brought a
On December 8, 1916, the bill in equity to prevent such
President proclaimed a treaty enforcement.
between the United States and
Great Britain that recited the val- ISSUE Whether the treaty and
ue of migratory birds, described statute were void as an
their annual migrations through interference with the rights reserved to the states under the
parts of Canada and the
Constitution.
DECISION The court upheld both(4)The treaty in question does not
the treaty and the statute.
contravene any prohibitive words
to be found in the Constitution.
REASONING (1) By Article 2,(5)Wild birds are not in the
section 2 of the Constitution, the possession
of
anyone,
but
power to make treaties is possession is the beginning of
delegated specifically to the ownership. Migratory birds travel
federal government.
from state to state; hence the
(2)By Article 6 of the Constitution, whole foundation of any states
treaties made under the authority rights is the relatively momentary
of the United States, along with presence of birds in their
the Constitution and laws of the boundaries.
United States made in pursuance(6)Valid treaties are binding within
thereof, are declared to be the the territorial limits of the states
supreme law of the land.
as they are elsewhere throughout
(3)If the treaty is valid, then the the United States. Although the
statute implementing the treaty is bulk of private relations usually
valid also.
fall under the control of the
states, a treaty may override the
power of the latter.
(7)A national interest of the first government has the right to act,
magnitude is involved. The states in the absence of prohibitory
cannot be relied on to protect wording in the Constitution.
that interest; hence the federal
13
partI
The Law of
Nations
international law. On the other hand, such legislation would
cause the U.S. government to be responsible
to other states for
16
violating the treaty or international law.
It must also be assumed that a widely recognized rule of
customary international law provides that a rule of municipal
law adopted subsequent to a treaty and that conflicts with the
provisions of the earlier treaty cannot alter the provisions of the
treaty in international law. Article 27 of the 1969 Vienna
Convention on the Law of Treaties states that a party may not
invoke the provisions of its internal law as justification for its
failure to perform a treaty. Even before 1969, the customary
law rule had received judicial support in a surprising number of
municipal court decisions. Thus, in Librairie Hachette S.A. v.
Societe Cooperative, the Swiss Civil Court of Geneva held that
the Swiss federal law on cartels of 1962 was superseded by the
Franco-Swiss Convention on Jurisdiction and Execution of
Judgments of 1869. More recently the Supreme Court of
Belgium, in the important decision
in Etat Beige v. S.A.
17
Fromagerie Franco-Suisse le Ski, held that a treaty does not
void the conflicting internal law of a party to that treaty but
suspends operation of that law as to any areas of conflict with
the treaty; that is, when a domestic law conflicts with a rule of
international treaty law that has direct effect within the domestic
(municipal) legal order, the treaty prevails, because of the very
nature of international treaty law. The rule has even been
recognized in some national
constitutions, such as those of
18
France and the Netherlands.
But, when a state has failed to adopt by treaty, legislation,
or other public act a policy contrary to a rule of international
law previously assented to by that state, then the courts under
the latters jurisdiction are bound to accept, or at least to take
judicial notice of, that rule. This principle has been elucidated
most clearly by the Supreme Court of the United States in a
classic decision:
THE PAQUETE HABANA; THE LOLA
Supreme Court of the United States, 1900,
115 U.S. 611
The cargo, when the vessels were any knowledge, until the vessels
seized, consisted of fresh fish. were captured, that a state
Apparently neither captain had
of war existed between Spain and(3)In most recent times, numerous
the United States or that a states issued specific orders to
blockade of Spanish ports had naval commanders concerning
been proclaimed by the United fishing vessels, recognizing their
States.
exemption from seizure unless
Both vessels were brought to military operations should make
Key West and condemned in the it necessary.
U.S. District Court, with a decree(4)International law is part of our
of sale of both vessels and law, and must be ascertained and
administered by courts of justice
cargoes.
of appropriate jurisdiction, as
ISSUE Whether unarmed coastal often as questions of right
fishing vessels of one belligerent depending upon it are duly
are subject to capture by vessels presented for their determination.
of another belligerent.
For this purpose, where there is
no treaty and no controlling
DECISION (1) Unarmed coastal executive or legislative act or
fishing vessels are exempt from judicial decision, resort must be
seizure by a belligerent.
had to the customs and usages of
(2) Decree of District Court civilized
nations;
and,
as
reversed, proceeds of the sale of evidence of these, to the works
vessels and cargoes to be restored of jurists and commentators, who
to the claimants, with damages by years of labor, research, and
and costs.
experience,
have
made
themselves
peculiarly
well
REASONING (1) By an ancient quainted with the subjects acof
usage among civilized nations, which they treat. Such works are
beginning centuries ago and resorted to by judicial tribunals,
gradually ripening into a rule of not for the speculations of their
international law, coastal fishing authors concerning what the law
vessels pursuing their vocation
have been recognized as exempt, ought to be, but for trustworthy
with their cargoes and crews, evidence of what the
from capture. This usage can be law really is [Hilton v. Guyot,
traced by means of documents 159 U.S.
back as far as a.d. 1403 in En- 131].
gland.
Subsequent
evidence(5)... at the present day, by the
indicates that France and other general consent of the civilized
countries followed the same nations of the world, and
usage.
Eminent
writers on independently of any express
international law have indicated treaty or other public act, it is an
through the past few centuries established rule of international
that the usage became general in law, founded on considerations of
humanity to a poor and
scope.
(2)The United States recognized the industrious order of men, and of
immunity of coastal fishing the mutual convenience of
vessels as far back as the belligerent States, that coast
Mexican War of 1846.
fishing
vessels,
with
their
15
partI
The Law of
Nations
implements and supplies, cargoes
and crews, unarmed and honestly
pursuing their peaceful calling of
catching and bringing in fresh
fish, are exempt from capture as
prize of war.
(6)This rule of international law is
one
which
prize
courts,
SUGGESTED READINGS
P.C.I.J., 1927,
The SS Lotus (France v. Turkey), Ser. A, No. 110, 4.
7
U.S. Supreme Court 1895, 159 U.S. 113.