International law and municipal law

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International law and municipal law

• Theory and practice

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Introduction

• The common factors of the two systems (subjects
  and contents)
• Two areas of the discussion in their
  relationship
• A. theoretical issue
• B. practical issue

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The theoretical issue

• MONISM
• Definition?two groups?Kelson and Lauterpacht
• DUALISM
• Coordinationism/dialectic doctrine
• Fitzmaurice Compromise

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The practical issueMunicipal law before
international tribunals

• The rule a state cannot rely on the provisions
  or deficiencies of its municipal law to avoid its
  obligations under international law.
• Alabama Claims Arbitration
• advisory opinion of the PCIJ
• Art.13 of the Draft Declaration on Rights and
  Duties of States 1949

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The practical issueMunicipal law before
international tribunals

• Art.27 of the Vienna Convention on the Law of
  Treaties
• The overriding conclusion a state should not
  seek to evade fulfilling an international
  obligation because of either the presence or
  absence of an internal legislative provision.
• The significance of municipal law in
  international court doctrine of opposability

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International law before municipal tribunals

• transformation and incorporation
• United Kingdom Practice
• United State practice
• Practice of other states

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United Kingdom Practice

• Customary international law
• Trendtex Trading Corporation V Central Bank of
  Nigeria
• applied by the English courts, subject to two
  main conditions
• A. the Act of parliament
• B. a binding judicial precedent

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Treaties

• a dualistic approach An Enabling Act
• the Ponsonby Rule
• Explanatory Memorandum
• Executive Certificate

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United State practice

• Customary international law accepted as part of
  American law, provided there is neither a
  domestic judicial decision nor a domestic
  legislative measure to the contrary.
• Treaties self-executing and non-self-executing
• Executive agreement
• Congressional executive agreements
• Act of State doctrine

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