Distinctions Between International Law And Municipal Law

George, the Chief Justice of Ruretania, has been invited to sit on the ICJ as an ad hoc judge in a case now before the Court. After many years dealing with domestic law issues, he is now experiencing some difficulty in assessing the material submitted to the Court by the parties. These materials include:

a. An article in the American Journal of International Law written by an eminent jurist;

b. Draft articles prepared by the International Law Commission;

c. A decision of the Supreme Court of one of the parties to the dispute;

d. A United Nations General Assembly Resolution;

e. A Treaty to which only one of the parties to the dispute is a party;

f. A statement by the foreign minister of one of the parties; and

g. A previous decision of the ICJ.

Draw up a detailed memorandum for George explaining the sources of modern international law and advising him in particular as to the weight he should attach to the above-mentioned materials as sources and evidence of international law, drawing upon doctrinal aspects, relevant court judgments and opinions of authors.

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Introduction

One of the primary points of distinction between international law and municipal law may be drawn from the nature of their sources. International law has been described by authors as a decentralized system which arguably lacks a predefined and concrete structure which discriminates between potential sources as to their importance and value in the resolution of issues [1] . The international judge does not have reference to a constitution, codes of law or statutes as in the municipal scenario. This is due to the fact that in international law there is no compulsory jurisdiction and any rules which a state must abide to are the same rules which it has expressly consented to, either by way of its consistent practice in the formation of custom or else expressly in the formation of treaties. Technically speaking, such ‘contractual’ arrangement usually creating mutual obligations by way of treaty are the only source of international which is by its very nature objectively binding upon states, a reflection of the pacta sunt servanda principle in domestic Civil Law. It is for this reason that the law of treaties has been held to be a primary principle for centuries. Custom, on the other hand is primarily a matter of evidence. Brownlie [2] speaks of a categorization between the formal and the material sources of law. The formal sources are the ‘legal procedures and methods for the creation of rules of general application which are legally binding on the addressee’ such as international custom created by constant state practice and the law contained in treaties. The material sources, on the other hand, ‘provide evidence of the existence of rules which, when proved, have the status of legally binding rules of general application’, here one can include decisions of international courts or tribunals, resolutions of the General Assembly of the United Nations and possibly Doctrinal sources. Brownlie continues to argue that in reality, save the usefulness in academia, the so-called elevation of ‘formal sources’ do not really exist in international law [3] as this would create a hierarchy which is not actually present. The Statute of the ICJ [4] constitutes a generally accepted list of the sources of international law ascribed to by the court [5] :

38 (1)The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

An article in the American Journal of International Law written by an eminent jurist

In order to help the Chief Justice of Ruretania in the performance of the new role of ad hoc judge in a case before the International Court of Justice, we need to give guidance on how to assess and use the contents of an article published in the American Journal of International Law written by an eminent jurist, that was submitted by the parties as part of the materials to be used as part of the deliberations of the judges.

Article 38 of the Statute of the International Court of Justice lists the traditional sources of International Law, which include the international conventions of a general or a particular nature that are recognised by the parties to the case, international custom that is evidenced by general use and acceptance at law, general principles of law as accepted by civilised nations and as subsidiary means to establish these rules of law, the judicial decisions and the teachings of the most highly qualified jurists of the various nations.

At the time of drafting, the term “convention” was used to mean any sort of agreement, however with the passage of time this term was redefined to make a specific reference to multilateral treaties. Without any doubt these written, accepted and published agreements are the primary source of law-making at the international law level. The only situation where any other rule takes precedence over a treaty is where the rules forms part of the jus cogens doctrine. Jus cogens is a normative rule that is generally accepted by the majority of states and from which no other state can expect to be given a derogation.

It is also argued that the international custom as evidence of a general practice that is accepted by law is of equal validity and importance to the contents of treaties as new customs may replace previously agreed treaties and new treaties replace older customs.

Article 38(d) of the ICJ statute specifically states that judicial decisions and the teachings of the most highly qualified publicists of the various nations may be used as subsidiary sources and the court is entitled to refer to these publications. This is subject to the provisions of Article 59 of the same statute.

Article 59 states that the decision of the International Court of Justice shall have no other bearing or binding force except on the parties of the case in question. However as part of the court’s decision, reference to other judicial decisions and to previously published works of eminent writers may be made.

The works of prominent jurists and scholars are accepted only as secondary or subsidiary sources of international law but can be considered to be an essential element in the development of the rules that are included treaties, custom and the general principles of the law.

More recently, the acts or resolutions of the various international organizations are also being considered as secondary sources of international law.

Draft articles prepared by the International Law Commission

In 1946, the UN General Assembly passed a resolution to set up a committee of legal experts to pass on recommendations to the UN Secretary General on the ways the General Assembly could proceed in the development of codification of international law. This Commission recommended that the UN sets up a permanent Commission with the same task. Thus in 1947 the UN set up the International Law Commission which has as its objectives the codification of international law as well as solving international legal problems [6] .

The International Law Commission prepares drafts, according to Section 20 of its Statute [7] , which are requested by the General Assembly or by government, by an inter-governmental organization or by a UN agency or on its own initiative. When the matter is brought to its attention by the General Assembly, one of its members sits with the Commission as a Special Rapporteur. In order to finalise a draft the Commission prepares a plan of work, receives written opinions and suggestions from the governments and then puts these together into a final draft. This final draft is submitted to the General Assembly for its final approval.

B.G. Ramcharan [8] describes the International Law Commission as the “vehicle for systematizing consolidating, up-dating, adapting, and expanding the law, and for giving an opportunity to the States […] to participate in this process”.

In The Work of the International Law Commission [9] any draft is given a “dual aspect”. On the one hand there is the codification of existing law as well as the “formulation of what the Commission considered to be desirable developments in the field.”

How effective are draft articles for George?

Although draft articles prepared by the International law Commission are a good indication of the general opinion on an issue in the international sphere (due to the opinions submitted by the States), these provisions are not binding. Therefore a provision in a Convention or a decision by the ICJ has more binding effect.

In fact the 1952 draft convention on arbitral procedure, although it was described as ‘unexceptionable’ and as ‘perfect’ from a technical point of view, it still was not accepted as the basis of a convention as the members of the General Assembly saw it as “over-ambitious” [10] .

Conventions concluded by the UN on the basis of drafts prepared by the ILC include the Vienna Convention on the Law of Treaties, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Vienna Convention on Succession of States in respect of State Property, Archives and Debts and others.

Drawing a comparison between the draft articles of one of the above and the actual Convention, one can easily see that most of the draft articles are adopted into the Convention word by word. I have carried out this exercise for the first twenty articles of the Vienna Convention on the Law of Treaties. In this comparison I have found that the substance of the articles has to a large extent been carried on into the Convention. Moreover the General Assembly introduced four other articles but removed only one whole article and two sub-articles. From this exercise I can conclude that the draft articles, before the Convention was enforced, were a very good indication of the opinio juris on the matter especially due to the fact that states give their opinion prior to the drawing up of a draft.

Therefore my advice to George would be that when he has to decide on a specific matter, first he should look into written legal provisions especially Conventions which have the most binding effect. If his findings are lacking he ought to see if the ILC has drawn up draft articles on the matter (since these are a codification of the unwritten customary law). Otherwise George has to look at the other sources of international law such as court decisions and the opinion of publicists on the matter as laid down in Article 38 of the Statute of the International Court of Justice.

A decision of the Supreme Court of one of the parties to the dispute

As the name indicates, the Supreme Court is the most important organ of the judiciary of the nation. However, within the international sphere, this position is taken up by the International Court of Justice. This does not reduce the importance of the Supreme Court, but its authority is merely superseded by a more senior court, which regulates conduct between states. Nevertheless, there is a theoretical issue which divides this are into two schools of thought: dualism and monism.

Dualist doctrine points to essential differences between international law and municipal law. This consists primarily in the fact that local legislation differs from international law in a fundamental way as international law regulates law between sovereign states whilst municipal law applies solely within a state and regulates the relationship between the citizens of a state and its executive. [11] This theory was espoused particularly by the German jurist Heinrich Triepel, who argued that in case of conflict between municipal and international law, a court would apply municipal law. [12] 

On the other hand, monism was espoused by jurists who believed in the supremacy of international law even within the municipal sphere. International law is seen as the best available moderator of human affairs, and a logical condition of the legal existence of states. [13] 

However, these theories were criticized on the basis that they hold conflicting views with the way that international courts ought to behave.

Nevertheless, a state cannot refrain from its international obligations citing municipal law, as provided in Article 27 of the Vienna Convention which states that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. [14] 

Municipal law is also relevant in international law as has been demonstrated in numerous cases. In fact, many instances in international law require concordance with municipal law to function correctly, such as in cases related to extradition and protection of human rights, as well as treaties.

Municipal law is important to such an extent that it can be used to determine cases in international tribunals. In the Serbian Loans Case [15] , the Permanent Court considered whether it had jurisdiction under its statute in a case where the point at issue was a question which had to be decided by the application of municipal law. It concluded that the duty of the Court was to exercise jurisdiction when two states agree to have recourse to the Court. The Court weighted the case and decided to apply Serbian law in this case.

The role of municipal law in international law was closely examined in the case concerning Certain German Interests in Polish Upper Silesia. [16] In this case, the Court observed that it was not called upon to interpret Polish law, but there was nothing to prevent the Court from judging whether Poland was acting in conformity with the Geneva Convention. Brownlie states that this statement indicates that municipal law can be considered as something which can create international responsibility. The general proposition is that international tribunals can take account of municipal laws only as facts to further discussion. [17] 

Brownlie also states that in the practice of the International Court and other international tribunals the concept of ‘municipal law as mere facts’ had six distinct aspects [18] . These aspects are:

Municipal law may be evidence of a violation of a rule of treaty or a customary law

Judicial notice does not apply to matters of municipal law, as the international tribunal will require proof of the existence of municipal law

In accordance with the Serbian Loans case, interpretation of municipal law by national courts is binding on an international tribunal

Municipal law must be applicable to an extent within international tribunals

International tribunals cannot declare the invalidity of municipal law and respect domestic jurisdiction

International law may designate a system of domestic law as the applicable law [19] 

Thus, given that in some cases international courts may apply municipal law, George must not discard totally the decisions of the Supreme Court, but must use it in order to help him with the case he is assigned to. Nevertheless, international law still supersedes municipal law, as provided in Article 27 of the Vienna Convention.

The United Nations General Assembly Resolution

Hon. Chief Justice, in order to understand better what is a United Nations General Assembly resolution, it would be ideal to start by providing you with a short and background information on the General Assembly itself.

The United Nations General Assembly is one of the five principal organs [20] of the United Nations and the only one in which all member nations have equal representation. This means, that since there are 192 member states in the United Nations, each and one of them is a member of the General Assembly. Each member of the General Assembly has one vote and important matters such as the elections of members, peace and security, budgets, and the suspension/discharging of members, is done by a two-thirds majority of those present and voting. Other recommendations which are considered to contain less weight, are decided by a majority voting.

As stated in the official website of the UN, the General Assembly meets under its president or secretary general in regular yearly sessions, the main part of which lasts from September to December and resumed part from January until all issues are addressed (which often is just before the next session’s start). It can also meet for special and emergency issues.

The Presidency rotates annually and the President is voted for by the same members of the United Nations. It is customary that the largest and most powerful countries, such as China, do not hold the presidency. On the other hand, countries such as Luxemburg and Switzerland, although small, had the presidency in the 1970’s. It is therefore important to point out that even Malta held the Presidency back in the 1990, when the general assembly elected Dr. Guido De Marco as president of its forty-fifth session. Although the power of the President is limited, he may accomplish much through his personal influence and political adeptness. [21] 

The UN General Assembly Resolution

The General Assembly votes on many resolutions brought forward by member states. It is interesting to appreciate that since 1945, at least 9229 resolutions spanning a vast and varied range of international issues have been adopted by the General Assembly. [22] 

Whilst this record of the General assembly’s formal concern, considerations and expression of views is indeed impressive, the fact remains that, except for budget and membership questions, General Assembly resolutions are not legally binding on member states. [23] 

The legal competence of the General Assembly to consider legal matters flows from the UN Charter. Article 10 gives the General Assembly the authority to discuss and make recommendations on any matter within the scope of the Charter, either to the United Nations membership generally or to the Security Council in particular. [24] 

In addition, the charter imposes two major restrictions on the General Assembly’s powers to discuss and make recommendations. The first is embodied in the principle set out in Article 2, paragraph 7 of the charter, which prohibits the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state and the second restriction is found in Article 12 of the Charter, which states that the General Assembly shall not make any recommendation while the Security Council is exercising its functions in respect to any international dispute.

However, although this might suggest that the General Assembly has no powers at all, resolutions have frequently been the origin of multilateral treaties drafted and promulgated under UN auspices. [25] General Assembly declarations had sometimes evolved into conventions adopted by the international community. Prominent among these declarations are those dealing with the use of forces back in the 1960’s. [26] 

Hon. Chief Justice, it is therefore important for you to know that back in the 1970’s Malta was also involved in a very important resolution, embedding principles related to the seabed and its resources. In fact, it was Arvid Pardo, a Maltese diplomat, who initiated a fifteen year process which led to a near-unanimous passage of General Assembly Resolution 2749 [27] . The principles brought forward in the resolution were later incorporated in the ‘Law of the Sea Convention’. This eventually proves that although resolutions are not binding, they may influence the nature and substance of international law in many ways and may also have legal force if they are regarded as statements of customary international law.

The General Assembly thus is not a World legislature. It does not codify laws or norms even though they are adopted unanimously and without any formal opposition. General Assembly resolutions are merely recommendations however the General Assembly can function as an instrument to collect and shape up into tangible form the international community’s customary norms.

State practice then becomes the main factor determining whether General Assembly resolutions give rise to new norms of international law or remain merely recommendations. Such new norms subsequently are codified into recognized principles of International Law through the promulgation of special conventions adopted by the General Assembly and approved by the required number of parties.

A Treaty to Which only one of the parties to the dispute is a party

A treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation [28] . They are generally held to be an ever-increasingly important source of international law and are a key towards the ends of developing a system of peaceful cooperation amongst states irrespective of their domestic legal particularities [29] . Since 1945, over 33,000 treaties have been deposited with the UN [30] .

In Art.38(1)(a), the Statute of the International Court of Justice makes reference to ‘international conventions’ establishing rules which are expressly recognised by the contesting states which may either be general or particular in their application. This article gives a very wide definition which seems to include not only bilateral and multilateral treaties but also any form of international agreement in any form.

It often happens that the language of a treaty which is presented before the court as a document containing rules recognised by the states in dispute is not always manifestly clear and precise as to make it clear whether such treaty is actually applicable to the circumstances of the case. The court will proceed to interpret the instrument, therefore determining its scope and effect and applicability to the dispute in question. According to Art.36(2)(a) of the Statute of the ICJ, states may at any time and by common accord, recognise as compulsory the jurisdiction of the court in the resolution of several legal disputes which might arise between them, amongst these, the Statute mentions the interpretation of a treaty. In any case, the Vienna convention lays down that treaties must always be interpreted in good faith and in accordance with the ordinary meaning of the words contained within, given their context within the treaty [31] .

The norm in public international law is that a treaty creates rights and obligations only between its parties, therefore third party states are not bound by any treaty which they have not individually entered into. This notion is best expressed by the maxim pacta tertiis nec nocent nec prosunt [32] . Art.34 of the Vienna Convention states that ‘a treaty does not create either obligations or rights for a third state without its consent’. This reasoning had already been confirmed in the earlier case dealing with the German Interests in Polish Upper Silesia [33] back in 1925. In this case, the PCIJ stated that ‘a treaty only creates law as between states which are parties to it; in case of doubt, no rights can be deduced from it in favour of third states’.

There are however some slight exceptions to this otherwise general principle. A norm which was originally confined to a treaty between a limited number of states may eventually become part of international custom through state practice and therefore achieve general application [34] .

The position at international laws appears to be clear enough in regard to cases where obligations are imposed on states which are merely third parties two treaties entered into by other states. The situation may tend to differ in cases which concern the granting of rights to third parties. The question is over when, if at all, such a ‘right’ becomes complete and enforceable by the third party state. According to Brownlie and McNair amongst others, ‘the general rule is that the third state only benefits in this sense if it expressly or implicitly assent to the creation of the right’. [35] The corollary is that the third state may refuse the right either explicitly or else simply by failing to exercise the alleged right. On the other hand, if a third state has accepted a right, the right cannot be revoked by the actual parties to the treaty if it can be established that the right conferred was not originally intended to be revocable, save the third states freedom to consent to such revocation or limitation [36] .

Strictly speaking, in the case brought before Judge George the matter of there being a treaty to which only litigant (A) is a party does not have a bearing on the relationship between states A and B in litigation since B is clearly a third party to the treaty and is therefore outside the scope of any rights or obligations created or conferred by the treaty provided that B had not consented to any obligations created by the treaty or else accepted any rights arising from the same.

A statement by the foreign minister of one of the parties

Parliamentary statements are one of the modes to detect a state practice and the position a state takes in the international plane. The foreign minister on a number of occasions may be asked to elucidate the state’s position on a particular issue of an international concern, thus parliamentary statements, can evoke a particular state practice. A state practice is a general practice which is normally accepted as law.

The other limb is that this state practice must be accepted as law and this is what we call “opinio juris sive necessitatis”. This opinio juris sive necessitatis is what authors refer to as the psychological element of states, this is because the state practice has to be accompanied by the intent which represent why the state acts in that particular manner. This means that parliamentary statements and therefore minister’s statements in the international court of justice reflects and determine the state practice and what it’s position is.

The Position of the Minister in the ICJ

Another important thing that we must notice is that the International Court of Justice deems the position of foreign Ministers to be of a very important nature. This is illustrated in Belgium VS Congo delivered by the International Court of Justice on 14th Febuary 2002 where it implied that customary international law grants to foreign ministers as long as they hold their office the advantage of absolute jurisdiction and inviolability. The reason behind this is for the international court of justice to ascertain performance of the very importatnt functions that foreign ministers excercise when they represent their states. This clearly points out that the international court of justice gives a lot of importance to the position of the foreign minister in the international court of justice but the question that arises is ‘Does it give the same importance to their statements?’

One must begin by saying that for a statement of foreign minister to be accepted and taken into consideration it must be in accordance with international law. In fact a point that was revealed in Military and Paramilitary Activi