1 Brownlie Chapter 3 - The Relations of International and National Law

Part I Preliminary topics, 3 The relations of
international and national law

James Crawford SC, FBA
From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford
Previous Edition (8 ed.)
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445
Subject(s):
Relationship of international law & host state law — Dualism — General principles of international law
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Peace Palace Library; date: 25 January 2021
(p. 45) 3 The relations of international and national law
1. Theoretical Approaches
The relationship between international and national law1 is often presented as a clash at a
level of high theory, usually between ‘dualism’ and ‘monism’.2 Dualism emphasizes the
distinct and independent character of the international and national legal systems.3
International law is seen as a law between states whereas national law applies within a
state, regulating the relations of its citizens with each other and with that state. Neither
legal order has the power to create or alter rules of the other. When an international law
rule applies, this is because a rule of the national legal system so provides. In the case of a
conflict between international law and national law, the dualist would assume that a
national court would apply national law, or at least that it is for the national system to
decide which rule is to prevail.
Monism postulates that national and international law form one single legal order, or at
least a number of interlocking orders which should be presumed to be coherent and
consistent. On that basis, international law can be applied directly within the national legal
order. This position is represented by jurists whose views diverge in significant respects.
Hersch Lauterpacht was a forceful exponent of a version of monism; he emphasized that
individuals are the ultimate subjects of international law, representing both the justification
and moral limit of the legal order.4 The state (p. 46) is disliked as an abstraction and
distrusted as a vehicle for maintaining human rights. International law is seen as the best
available moderator of human affairs, and also as a condition of the legal existence of states
and therefore of the national legal systems.5
Hans Kelsen developed monist principles on the basis of formal methods of analysis
dependent on a theory of knowledge.6 According to Kelsen, monism is scientifically
established if international and national law are part of the same system of norms receiving
their validity and content by an intellectual operation involving the assumption of a single
basic norm (Grundnorm). Only that assumption makes sense of the shared normativity of
law. This basic norm he formulates, with nice circularity, as follows: ‘The states ought to
behave as they have customarily behaved.’7 International law, in turn, contains a principle
of effectiveness which allows revolution to be a law-creating fact and accepts as legitimate
the historically first legislators of a state. This, as if by delegation, provides the basic norm
of national legal orders; the whole legal ordering of humanity is at once presupposed and
integrated: ‘Since the basic norms of the national legal orders are determined by a norm of
international law, they are basic norms only in a relative sense. It is the basic norm of the
international legal order which is the ultimate reason of validity of the national legal orders,
too.’8
Thus, Kelsen developed a monist theory of the relation between international and national
law.9 Law is a hierarchical system whereby each legal norm derives its validity from a
higher norm. This chain of validity can be traced to the Grundnorm, which is not a norm of
positive law but rather a ‘hypothesis of juristic thinking’.10 International and national law
form a single system of norms because (p. 47) they receive their validity from the same
source:11 the Grundnorm evidently has a lot to answer for. But Kelsen’s theory is
complicated in that he considered it equally possible that the relationship between legal
orders could be conceived on the basis of the primacy of national law rather than of
international law.12 The choice between these alternatives is to be made on political rather
than legal grounds.13
Faced with this apparent impasse, it seems natural to seek to escape from the dichotomy of
monism and dualism. Above all, neither theory offers an adequate account of the practice of
international and national courts, whose role in articulating the positions of the various
legal systems is crucial.14 Fitzmaurice attempted to bypass the debate by arguing that there
was no common field of operation: the two systems do not come into conflict as systems
since they work in different spheres, each supreme in its own field.15 However, there could
be a conflict of obligations, an inability of the state on the domestic plane to act in the
manner required by international law in some respect: the consequence of this will not be
the invalidity of state law but the responsibility of the state on the international plane.16
In considering these and later contributions to the debate about the relations between legal
systems, it seems desirable to leave behind the glacial uplands of juristic abstraction.17 In
fact, legal systems are experienced by those who work within them as having relative
autonomy (how much autonomy depends on the power and disposition of each system, and
varies over time). The only theory which can adequately account for that fact is some form
of pluralism.18 Each legal system has, almost by definition, its own approach to the others
(though in practice there is much borrowing). To talk of ‘national law’ is to generalize; but
as soon as one asks what approach a given system (international law, English law, French
law …) takes to another, the mist clears: it is possible to state the position with clarity and
to understand that each system reserves to itself the authority to determine for the time
being the extent and terms of interpenetration of laws and related issues of the separation
of powers.
(p. 48) 2. Relations of international and national law: An

overview
(A) International law’s approach to national law
(i) In general
Here the position is not in doubt.19 A state cannot plead provisions of its own law or
deficiencies in that law in answer to a claim against it for a breach of its obligations under
international law.20 This principle is reflected in Article 3 of the ILC’s Articles on
Responsibility of States for Internationally Wrongful Acts:
The characterization of an act of a State as internationally wrongful is governed by

international law. Such characterization is not affected by the characterization of
the same act as lawful by internal law.21
Arbitral tribunals,22 the Permanent Court,23 and the International Court24 have consistently
endorsed this position. It goes back to Alabama Claims,25 where the US recovered damages
from Great Britain for breach of its obligations as a neutral during the Civil War. The
absence of legislation to prevent the fitting out of commerce raiders in British ports or to
stop them leaving port to join the Confederate forces provided no defence to the claim. In
Free Zones, the Permanent Court observed: ‘… it is certain that France cannot rely on her
own legislation to limit the scope of her international obligations …’26 The same principle
applies where the provisions of a state’s constitution are relied upon. In the words of the
Permanent Court: ‘a State cannot adduce as against another State its own Constitution with
a view to evading obligations incumbent upon it under international law or treaties in
force’.27
An associated question is whether the mere enactment of legislation can give rise to
international responsibility, or whether an obligation is only breached when the (p. 49) state
implements that legislation. There is a general duty to bring national law into conformity
with obligations under international law,28 but what this entails depends on the obligation
in question. Normally, a failure to bring about such conformity is not in itself a breach of
international law; that arises only when the state concerned fails to observe its obligations
on a specific occasion.29 But in some circumstances, legislation (or its absence) could of
itself constitute a breach of an international obligation, for example where a state is
required to prohibit certain conduct or to enact a uniform law.
(ii) National laws as ‘facts’ before international tribunals
In Certain German Interests in Polish Upper Silesia, the Permanent Court observed:
From the standpoint of International Law and of the Court which is its organ,
national laws are merely facts which express the will and constitute the activities of
States, in the same manner as do legal decisions or administrative measures. The
Court is certainly not called upon to interpret the Polish law as such; but there is
nothing to prevent the Court’s giving judgment on the question whether or not, in
applying that law, Poland is acting in conformity with its obligations towards
Germany under the Geneva Convention.30
Thus, a decision of a national court or a legislative measure may constitute evidence of a

breach of a treaty or of customary international law.31 However, the general proposition
that international tribunals take account of national laws only as facts ‘is, at most …
debatable’.32
The concept of national law as ‘merely facts’ has at least six distinct aspects.
(1) National law may itself constitute, or be evidence of, conduct in violation of a rule
of treaty or customary law.
(2) National law may be part of the ‘applicable law’ either governing the basis of a
claim or more commonly governing a particular issue.
(3) Whereas the principle jura novit curia (the court knows the law) applies to
international law, it does not apply to matters of national law. International tribunals
will generally require proof of national law, although they may also (subject to due
process constraints) undertake their own researches. 33
(4) When called upon to apply national law, an international tribunal should seek to
apply that law as it would be applied in the state concerned. 34 It is for each state, in
the (p. 50) first instance, to interpret its own laws. 35 International tribunals are not
courts of appeal and they do not have the authority to substitute their own
interpretation of national law for that of the national authorities, especially when that
interpretation is given by the highest national courts. In many situations, an
international tribunal must simply take note of the outcome of a domestic decision
and then deal with its international implications. 36 It will only be in exceptional
circumstances that an international tribunal will depart from the construction
adopted by a national authority of its own law, such as where a manifestly incorrect
interpretation is put forward in the context of a pending case. 37
(5) International tribunals cannot declare the unconstitutionality or invalidity of rules
of national law as such. 38 Only if it is transparently clear that a national law would be
treated as unconstitutional or invalid by the national courts should an international
tribunal follow suit.
(6) The proposition that an international tribunal does not interpret national law ‘as
such’ is open to question. 39 When it is called on to apply rules of national law, an
international tribunal will interpret and apply domestic rules as such. 40 This may
occur in a variety of circumstances. First, there is the case of renvoi: in Lighthouses,
for example, the special agreement required the Court to decide if the contracts had
been ‘duly entered into’ under Ottoman law. 41 Or international law may designate a
system of domestic law as the applicable law in respect of some claim or transaction.
42
Where relevant issues (whether classified as ‘facts’ or otherwise) require
investigation of national law, the Court has made the necessary findings.
(p. 51) (iii) Treatment of national law by international tribunals

Cases where a tribunal dealing with issues of international law has to examine the national
law of one or more states are by no means exceptional.43 The spheres of competence
claimed by states, represented by territory, jurisdiction, and nationality of individuals and
legal persons, are delimited by legislation and judicial and administrative decisions.
International law sets the limits of such competence, but in order to decide whether
particular acts are in breach of obligations under treaties or customary law, the Court has
had to examine national law relating to a wide range of topics, including expropriation,44
fishing limits,45 nationality,46 guardianship and welfare of infants,47 the rights of
shareholders in respect of damage suffered by corporations,48 and the arbitrary arrest and
expulsion of aliens.49 National law is very frequently implicated in cases concerning
individuals, including those relating to the protection of human rights and the exhaustion of
local remedies.
Many treaties contain provisions referring directly to national law50 or employing concepts
which by implication are to be understood in the context of a particular national law.51
When treaties refer to ‘nationals’ of the contracting parties, the presumption is that the
term connotes persons having that status under the internal law of one of the parties.
Similarly, treaties often involve references to legal interests of individuals and corporations
existing within the cadre of a given national law. Treaties having as their object the creation
and maintenance of certain standards of treatment of minority groups or aliens may refer to
a national law as a method of describing the status to be created and protected.52 The
protection of rights may be stipulated as being ‘without discrimination’ or as ‘national
treatment’ for the categories concerned.53
On occasion, an international tribunal may be faced with the task of deciding issues solely
on the basis of national law. Serbian Loans54 concerned a dispute between the French
bondholders of certain Serbian loans and the Serb-Croat-Slovene government, (p. 52) the
former demanding loan service on a gold basis, the latter holding that payment in French
paper currency was permissible. The French government took up the case of the French
bondholders and the dispute was submitted to the Permanent Court. The Court emphasized
its duty to exercise jurisdiction duly conferred by agreement, in the absence of provision to
the contrary in the Statute.55 On the merits, the Court held that the substance of the debt
and the validity of the clause defining the obligation of the debtor state were governed by
Serbian law, but, with respect to the method of payment, the law applicable was that of the
place of payment, in this case French law.
(B) International law before national courts: General considerations

(i) Establishing international law before national courts
An initial issue is whether the jurisdiction considers international law to be ‘part of’ (in the
sense of generally available to) national law, a question that is often constitutional in
character, and which may be answered differently for customary law and treaties.56 Thus,
the 1949 German Grundgesetz provides in Article 25 that ‘[t]he general rules of public
international law shall be an integral part of federal law.’ Where such a position is adopted,
a national court will go about establishing the content of international law as a matter of
legal argument.57 Once a court has ascertained that there are no bars within its own legal
system to applying the rules of international law or provisions of a treaty, the rules are
accepted as rules of law and are not required to be established by evidence, as in the case
of matters of fact and foreign law.58 But in the case of international law, this process of
judicial notice has a special character. In the first place, there is a problem involved in
finding reliable information of international law, especially customary law, in the absence of
resort to expert witnesses. Secondly, issues of public policy and difficulties of obtaining
evidence on larger issues of state relations combine in some systems to produce a
procedure whereby the executive may be consulted on certain questions of mixed law and
fact, for example the existence of a state of war or the status of an entity claiming sovereign
immunity.
Thus, in France the Minister of Foreign Affairs may give an interpretation of a treaty to a
court, which may then be relied upon in later cases involving the same provision.59 On the
other hand, a national court may itself make a full investigation of the legal sources,60
including treaties and state practice. Reference may also be made to decisions (p. 53) of
international tribunals61 and the work of the ILC.62 International law is increasingly finding
its way into national courts, and judges are increasingly finding themselves called upon to
interpret and apply it—or at least to be aware of its implications.
(ii) International law as the applicable law in national courts
Once a national court has determined that international law is in some way relevant and
applicable to a matter before it, it falls to the court to determine how that law is to sit
alongside any national law that may also be applicable. Again, the approach of a national
court to international law will be largely determined by the rules of the jurisdiction in
question. But certain issues common to many or all jurisdictions may be identified.
(1) Courts may be called upon to adjudicate conflicts between a municipal law on the
one hand and a rule of customary international law on the other. Many municipal
systems now appear to have in one way or another accepted customary international
law as ‘the law of the land’, even where no constitutional provision is made, 63 but
questions remain as to how it fits within the internal hierarchy of a national system.
As a general (but by no means absolute) rule, a statute will prevail over a rule of
customary international law if no reconciliation is possible by way of interpretation. 64
(2) The question also arises with respect to treaties, but will take on a more overtly
constitutional flavour. ‘Monist’ systems may expressly provide that duly signed and
ratified treaties take precedence over national legislation. 65 In other (‘dualist’)
systems where the conclusion of a treaty is an executive act, it will be for the
legislature to implement the treaty as part of national law—insofar as this may be
required. In such a system, the treaty is applied by the courts as mediated by the
legislation, and legislation will prevail, again unless the issue can be resolved by
interpretation. 66
(3) When applying international law rules, municipal courts may find it necessary to
develop the law, notably where it is unclear or uncertain. 67 This will include (p. 54)
consideration of how the international rule is applicable in a domestic context, a
process which has been notable, for example, in the field of state immunity. 68 The
question is particularly vexed in the US due to the so far unique provisions of the
Alien Tort Statute 69 and subsequent efforts to define its scope. 70
(4) Even in monist systems, the court may need to determine the extent to which a
rule of international law may be directly applied. For example, a treaty (even if duly
ratified and approved in accordance with constitutional processes) may be held ‘non-
self-executing’, that is to say, inapplicable without further specification or definition
by the legislature. 71
(5) A further question is the extent to which the executive may intervene in the
court’s application of international law. One consideration may be the need for the
judiciary and the executive to speak with one voice with respect to the foreign policy
of the country in question. Thus, when considering issues such as the recognition of
states and governments, state immunity, and diplomatic immunity the courts may
accept direction from the executive. 72 Caution must be exercised, however,
particularly in the European context, with the European Court of Human Rights
holding that the practice in extreme forms is incompatible with the right of access to
‘an independent and impartial tribunal’. 73 There, the practice scrutinized was the
French procedure of referring preliminary questions on matters of treaty
interpretation to the Minister for Foreign Affairs, and treating any opinion given as
binding. 74 The revised French practice does not attribute binding effect to such
opinions and indeed does not require them to be given at all. 75 (p. 55)
(6) A court may be called upon under the rules of private international law to apply
foreign law. If it is alleged that the applicable law is in conflict with international law,
the court may be required to determine whether the act or law of a foreign state is
contrary to its international obligations. In many jurisdictions—notably in the US—
such issues have given rise to the ‘act of state’ doctrine, whereby a court will, as an
organ of a sovereign, refuse to pass judgement on the acts of another, formally equal,
sovereign. The scope of the doctrine varies from one jurisdiction to another.
(7) Finally, the court, confronted with an intricate issue of international law, may
simply concede that it is beyond its capacity to decide, that is, is non-justiciable. As
will be seen, the doctrine exists in England and in other common law jurisdictions.
A further suite of issues emerges with respect to federal states:76 the capacity of entities
other than the federal government to deal with questions of foreign affairs, the place of
international law in the components of the federal system,77 and the capacity of courts
other than those at a federal level to apply international law.
(C) Res judicata as between international and national law
(i) National res judicata before international courts
From a formal point of view, res judicata is a general principle within the meaning of Article
38(1)(c) of the Statute,78 applied in tandem by international and national courts.79 But there
is no effect of res judicata from the decision of a national court so far as an international
jurisdiction is concerned. Even if the subject matter may be substantially the same, the
parties may well not be, at least in the context of diplomatic protection and possibly outside
that context also.80 (p. 56) Other considerations also play a role, not least the principle that
international law is (in its own terms) supreme. But an international tribunal may be bound
by its constituent instrument to accept certain categories of national decisions as conclusive
of particular issues.81
Some international tribunals afford natural and juridical persons standing against states,
including in respect of decisions of state courts. For example, the European Court of Human
Rights functions as a court of final resort on human rights issues; it is only accessible once
local remedies have been exhausted and does not re-examine any questions of fact already
dealt with by a municipal court.82 In the case of investor–state arbitration tribunals, the
default position is that the decisions of national court create no res judicata insofar as the
work of the tribunal is concerned,83 but the parties to the bilateral or multilateral treaty
granting the tribunal jurisdiction may incorporate procedural roadblocks into the bargain,
such as the so-called ‘fork in the road’ clause.84 Such a clause requires the claimant to elect
investor–state arbitration or litigation before the courts of the host state of the investment
as its preferred method of dispute resolution. Once an election is made, other ways of
bringing the original claim are closed to the claimant.
(ii) International res judicata before national courts
In principle, decisions by organs of international organizations are not binding on national
courts without the cooperation of the national legal system,85 which may adopt a broad
constitutional provision for ‘automatic’ incorporation of treaty norms or require specific
acts of incorporation or implementation. On the other side of the equation, however,
municipal courts may seek to circumvent the finality of such decisions without engaging the
question of res judicata through interpretive legerdemain. In recent times, this has been a
feature of US practice, which links the effect of a judgment to the status of the relevant
international court or tribunal’s constitutive instrument within municipal law.86
(p. 57) Leaving aside such arguments, a decision of the International Court, even one
concerning substantially the same issues as those before a national court, does not of itself
create a res judicata for the latter.87 However, it does not follow that a national court should
not recognize the validity of the judgment of an international tribunal of manifest
competence and authority, at least for certain purposes.88 For this reason, states often
accord res judicata effect to international and domestic arbitral awards.89 On the one hand,
this is desirable as a matter of common sense, and the arguments from a policy perspective
are well known; parties to litigation are at a certain point in time entitled to draw a line
under a dispute and be free of continued legal harassment. On the other, it may be the
subject of a treaty obligation, for example under the New York Convention90 or the
International Centre for the Settlement of Investment Disputes (ICSID) Convention.91
Outside those areas with specific treaty obligations, state practice is extremely variable,
with a number of countries not affording res judicata effect to foreign judgments,92 or even
those judgments arising from a different federal unit of the same country.93
(iii) Res judicata and third parties
In international law, res judicata includes issue estoppel, but probably does not extend to
the US doctrine of collateral estoppel (binding upon third parties).94 But the decisions of an
international court or tribunal may carry evidentiary weight even vis-à-vis third parties. For
example, national courts, in dealing with cases of war crimes and issues arising from
belligerent occupation, the validity of acts of administration, of requisition and of
transactions conducted in occupation currency have relied upon the findings of the
International Military Tribunals at Nuremberg and Tokyo as evidence, even conclusive
evidence, of the illegality of the war which resulted in the occupations.95
(p. 58) Quite aside from this, the legal reasoning employed by international tribunals may
carry weight. In Mara’abe v Prime Minister of Israel, the Supreme Court of Israel found
that the International Court’s Wall advisory opinion96 did not constitute res judicata but
that the Court’s interpretation of international law (as opposed to its factual
determinations) should be given ‘full appropriate weight’.97
3. International law in the common law tradition

(A) Development of the common law approach
The common law was initially seen, and saw itself, as the law of the land—of the kingdom of
England.98 It was applied by the common law courts at Westminster and set over against
the civil law which governed maritime matters, foreign trade, and also, given its links to the
jus gentium, the relations of princes and republics. The latter law was practised by the
civilians before the civil law courts such as the Court of Admiralty, and before the Council.
The Council’s advice on the law of nations came from civilian-trained lawyers not from the
common lawyers.99
The situation changed to some extent in the eighteenth century, following the abolition of
the conciliar courts at the Restoration and the opening up to the common law courts of the
field of international commercial litigation. Part of that opening was a greater willingness to
be influenced by foreign and civil law, a trend personified by Lord Mansfield, who first
recorded the principle of ‘incorporation’, that is, that international law was ‘part of the law
of England’, a tradition he attributed to Lord Talbot and handed on to Blackstone.100 What
the Court of Admiralty in its prize jurisdiction saw as a simple matter of applicable law
became for the common law courts a deliberate choice.101 But this open-minded approach
was qualified in various ways: the supremacy of Parliament meant that treaties (the
conclusion of which was a royal prerogative) were not part of English law, and the old role
of the Council in matters of external relations left a prototype of the act of state doctrine102
together with a deference to executive authority in matters of the foreign prerogative
(notably recognition). The overall result was eclectic, reflecting a practical (p. 59) rather
than theoretical policy of the courts. In the post-Judicature Act period (post-1875) there was
much by way of practical development, but the essential pattern has not changed. It is
necessary to take the components in turn, beginning with the most straightforward.
(B) Treaties in English law

(i) Unincorporated treaties
In England,103 the conclusion and ratification of treaties are within the prerogative of the
Crown, and if a transformation doctrine were not applied, the Crown could legislate for the
subject without parliamentary consent,104 in violation of the basal notion of parliamentary
sovereignty.105 The rule does not apply in the very rare cases where the Crown’s
prerogative can directly extend or contract jurisdiction without the need for legislation.106
Thus, as a strongly dualist system, English law will not ordinarily permit unimplemented
treaties to be given legal effect by the courts.107 A concise statement of this rule was
provided by the Privy Council in Thomas v Baptiste:
Their Lordships recognise the constitutional importance of the principle that

international conventions do not alter domestic law except to the extent that they
are incorporated into domestic law by legislation. The making of a treaty … is an act
of the executive government, not of the legislature. It follows that the terms of a
treaty cannot effect any alteration to domestic law or deprive the subject of existing
legal rights unless and until enacted into domestic law by or under authority of the
legislature. When so enacted, the courts give effect to the domestic legislation, not
to the terms of the treaty.108
(p. 60) Thus, unimplemented treaties cannot create enforceable rights nor deprive
individuals of legal rights previously bestowed; this is known as the principle of no direct
effect.109 They similarly cannot prevail over statutes, are not ordinarily contracts capable of
enforcement in domestic courts, and their infringement by the UK is domestically without
legal effect.110 Neither do decisions by international courts and tribunals which determine
the UK to be in breach of unimplemented treaty obligations have any domestic effect.111
(ii) Incorporated treaties
Once a treaty is implemented by Parliament, the resulting legislation forms part of UK law
and is applicable by the courts as so implemented.112 Accordingly, there is no distinction in
the law of the UK between self-executing and non-self-executing treaties; all treaties may be
classified as non-self-executing as all require legislative action to become law. An apparent
exception to this rule arises in the case of treaties concluded by the institutions of the
European Union, with the Court of Justice holding these to be directly enforceable within
member states as part of the acquis communautaire. But in UK law, EU treaties have this
effect because of the relevant statute, which will be repealed on the UK’s withdrawal from
the EU.113
Once enacted, the statute implementing the treaty will function as any other Act of
Parliament. Thus, for example, the words of a subsequent Act of Parliament will prevail over
the provisions of a prior treaty in the case of clear inconsistency between the two.114
Legislation to give effect in domestic law to treaty provisions may take various forms. A
statute may directly enact the provisions of the international instrument, which will be set
out as a schedule to the Act.115 It may employ its own substantive provisions to give effect
to a treaty, the text of which is not itself enacted. It may be that the enacting legislation
makes no specific reference to the treaty in question, though there is extrinsic evidence to
show that the statute was intended to give effect to it.116 (p. 61) The result is a balancing
act that requires the court to scrutinize the strength of the relationship between the
enacting statute and its parent treaty, and determines the strength of the latter as an
interpretative tool.117
(iii) Treaties and the interpretation of statutes
Questions surrounding the interpretation of treaties and statutes in English law can
generally be divided into two categories:118 the interpretation of enabling instruments and
the interpretation of other legislation in the light of treaties entered into, both incorporated
and unincorporated. As to the former, it is to be remembered that the primary object of
interpretation is the implementing statute, and only at one remove the treaty which
implements or incorporates it.119 Accordingly, although international courts and tribunals
may rule on the interpretation of a treaty, their rulings are not binding.120
On the other hand, the interpretation of treaty provisions is a matter of law. Unlike in some
countries, the courts do not seek binding interpretations of treaties from the executive.121
They will apply international rules of treaty interpretation, as reflected in the Vienna
Convention on the Law of Treaties,122 rather than the domestic canons of statutory
interpretation (though these are less different than they used to be).123 Furthermore, in the
interests of coherent interpretation between states parties to the relevant agreement, the
decisions of other domestic tribunals on the interpretation of treaties are taken into
account.124
(p. 62) Difficulties may arise where the implementing statute is ambiguous on its face as to
the extent to which it implements a treaty, or fails to mention the treaty entirely. But where
it is clear that Parliament intended to implement a treaty through the legislation, the terms
of the legislation are to be construed if possible so as to conform to the treaty.125
More generally, as noted by Diplock LJ in Salomon: ‘Parliament does not intend to act in
breach of international law, including therein specific treaty obligations.’126 This
presumption applies to unincorporated treaties as much as incorporated ones,127 but it only
applies to legislation enacted after a treaty has been signed or ratified.128 On the other
hand, it will apply even where there is no link between the treaty and the legislation in
question.129 In addition to legislation, the presumption may also apply to other instruments
or guidelines given domestic effect.130
The presumption itself will only act as an aid to interpretation where the statutory provision
is open to interpretation in that it is not clear on its face.131 In Ex p Brind, Lord Bridge,
having regard to the then-unimplemented European Convention for the Protection of
Human Rights, said:
[I]n construing any provision in domestic legislation which is ambiguous in the

sense that it is capable of a meaning which either conforms to or conflicts with the
Convention, the courts will presume that Parliament intended to legislate in
conformity with the Convention, not in conflict with it. Hence, it is submitted, when
a statute confers upon an administrative authority a discretion capable of being
exercised in a way which infringes any basic human right protected by the
Convention, it may similarly be presumed that the legislative intention was that the
discretion should be exercised within the limitations which the Convention
imposes.132
(p. 63) (iv) Treaties and the determination of the common law
The presumption in favour of interpreting English law in a way which does not place the UK
in breach of an international obligation applies not only to statutes but also to the common
law.133 Use may be made of unincorporated treaties particularly where the common law is
uncertain or developing.134 The English courts have taken into account treaty-based
standards concerning human rights in order to resolve issues of common law, including the
legality of telephone tapping,135 the offence of criminal libel,136 contempt of court,137 and
freedom of association.138 This development is not confined to human rights treaties: Alcom
Ltd v Republic of Colombia, for example, involved reference to general international law for
the purposes of statutory interpretation in the context of state immunity.139
(C) Customary international law

(i) ‘Incorporation’
It has become received wisdom that the common law approach to customary international
law140 is that of ‘incorporation’,141 under which customary rules are to be considered ‘part
of the law of the land’ provided they are not inconsistent with Acts of Parliament. The
following statement by Lord Denning MR in Trendtex Trading Corp v Central Bank of
Nigeria is usually cited in support of the proposition:
Seeing that the rules of international law have changed—and do change—and that
the courts have given effect to the changes without any Act of Parliament, it follows
… inexorably that the rules of international law, as existing from time to time, do
form part of English law.142
(p. 64) But according to Lord Wilberforce, it may be wise to ‘avoid commitment to more of
the admired judgment of Lord Denning MR than is necessary’.143 The position in England is
not that custom forms part of the common law (how can foreign states of whatever legal
tradition make the common law?), but that it is a source of English law that the courts may
draw upon as required.144
As Lord Bingham said in R v Jones (Margaret):
The appellants contended that the law of nations in its full extent is part of the law
of England and Wales. The Crown did not challenge the general truth of this
proposition, for which there is indeed old and high authority … I would for my part
hesitate … to accept this proposition in quite the unqualified terms in which it has
often been stated. There seems to be truth in Brierly’s contention … that
international law is not a part, but is one of the sources, of English law.145
Similarly Lloyd-Jones LJ put it in the following terms:
[I]t is not possible to make sweeping deductions from such broad statements of
principle as the relationship between customary international law and the common
law in this jurisdiction is far more complex. It seems preferable to regard customary
international law not as a part but as a source of the common law on which national
judges may draw … As part of this process they will have to consider whether any
impediments or bars to giving effect to customary international law may exist as a
result of domestic constitutional principles. Moreover … it appears that judges in
this jurisdiction may face a policy issue as to whether to recognise and enforce a
rule of customary international law. However, given the generally beneficent
character of international law the presumption should be in favour of its
application.146
In short, the relationship of custom and the common law is more nuanced than either the
doctrines of incorporation or transformation would suggest.147
(ii) The process and limits of ‘incorporation’
It is possible to discern a broad process in the way the common law adopts customary
international law. There is an initial question of or akin to choice of law: is this a subject
matter on which international law has something to say, and which it allows (or requires)
national courts to say. If (as with foreign state immunity) the answer to both questions is
yes, there is a second, constitutional question: is this an area where the common law courts
retain law-making power or (as with substantive criminal (p. 65) law) not?148 Where it is
appropriate to consider norms of international law, rather than the law of the forum or a
foreign law, then the courts will take judicial notice of the applicable rules, whereas formal
evidence is required of foreign (national) law.
However, the courts still have to ascertain the existence of the rules of international law
and their effect within the national sphere: the latter task is a matter on which the rules of
international law may provide limited guidance. Case law suggests that four considerations
are relevant to the question of incorporation.149
(1) The first question is whether the customary international law rule is susceptible to
domestic application.150 For example, is the rule in question of a strictly interstate
character, or does it implicate the rights of private parties? The former may be difficult to
restructure as a norm within a domestic legal system. In the case of the latter, individual
rights may be more readily transposed.151 Some courts have identified further limits that
might be imposed on such an attempted transposition, based not on amenability for
adoption, but on the character of the norm. In Al-Saadoon, Laws LJ said:
[T]he … proposition that the customary rule may be sued on as a cause of action in
the English courts is perhaps not so clear cut. It would of course have to be shown
that the rule did not conflict with any provision of English domestic law … I
apprehend the rule would also have to possess the status of jus cogens erga omnes
…152
But whilst ‘incorporation’ as conceived here has existed since the eighteenth century, the
concept of peremptory norms is much more recent. The combination of the two is
ahistorical—but the insight that certain norms may imperatively call for implementation is a
valuable one. Something similar may have been implied by Justice Souter’s dictum for the
Supreme Court in Sosa that norms of international law, to be given direct effect under the
Alien Tort Statute, have to be ‘specific, universal, and obligatory’ (although Sosa concerned
statutory not common law incorporation).153
(2) The next question is whether the proposed common law rule is contradicted by any
constitutional principle.154 Thus, in R v Jones (Margaret), the issue was whether the crime
of aggression in customary international law could be considered part of the law of
England. (p. 66) Lord Bingham said that in order for a customary norm to be translated to
the common law, it must conform to the constitution: ‘customary international law is
applicable in the English courts only where the constitution permits’.155 As the constitution
requires that only Parliament could be responsible for the creation of crimes in English
law,156 aggression could not be considered an element of the common law but was a matter
for legislation.157
Within the consideration of constitutionality and custom is the principle that the common
law is inferior to statute, a concept flowing directly from the doctrine of parliamentary
sovereignty. Thus, a customary norm may only be transposed into the common law to the
extent that it does not conflict with an Act of Parliament. In Chung Chi Cheung v R, Lord
Atkin said:
The courts acknowledge the existence of a body of rules which nations accept
amongst themselves. On any judicial issue, they seek to ascertain the relevant rule,
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 …158
Thus, in Al-Adsani v Government of Kuwait, Mantell J would not accept the argument that a
common law tort of ‘torture’ arising from custom (even if it could be said that one existed)
would prevail over the provisions of the State Immunity Act 1978.159 Likewise, the
existence of legislation providing for investigations into deaths has precluded the possibility
of incorporating a ‘parallel but non-identical’ customary duty.160
(3) A third consideration is whether the proposed rule is itself contradicted by some
antecedent principle of the common law. In West Rand, Lord Alverstone CJ accepted that
custom could contribute to the common law insofar as it was not ‘contrary to the principles
of her laws as decided by her courts’.161 Similarly, Lord Atkin in Chung Chi Cheung v R
conditioned incorporation on consistency ‘with rules … finally declared by … tribunals’.162 A
practical example of how extant principles may bar the expansion of the common law in this
way occurred in Chagos Islanders v Attorney General.163 The case concerned a claim for
damages based in reliance on the UK’s supposed breach of (p. 67) the international human
right not to be prevented from returning to one’s home state. Ouseley J denied the claim,
noting that even if breach of the right in question could be said to violate a common law as
well as customary right, this could not, in itself, give rise to an action for damages: this
would be ‘no more and no less than a particular example of a tort for unlawful
administrative acts’,164 the possibility of which the House of Lords had previously excluded
at common law.165
(4) A further problem is one of precedent. In Trendtex, Lord Denning said:
International law knows no rule of stare decisis. If this court is satisfied that the
rule of international law on a subject has changed from what it was 50 or 60 years
ago, it can give effect to that change—and apply the change in our English law—
without waiting for the House of Lords to do it … After all, we are not considering
here the rules of English law on which the House has the final say. We are
considering the rules of international law.166
By contrast, in Thai-Europe Tapioca Service Ltd v Government of Pakistan Scarman LJ said:
[I]t is important to realise that a rule of international law, once incorporated into
our law by decisions of a competent court, is not an inference of fact but a rule of
law. It therefore becomes part of our municipal law and the doctrine of stare decisis
applies as much to that as to a rule of law with a strictly municipal provenance.167
But it is excessively parochial to think that an incorporated rule of international law is

entirely domesticated, any more than an incorporated treaty. It should be open to the courts
to reconsider the rule if there are indications of a material change in international law and
more generally to track developments in the law. On the one hand, it was artificial to think
that a House of Lords decision on absolute immunity of 1938168 should be considered as
preclusive in the very different state of affairs in 1978. On the other hand, the decision in
Trendtex was authority on the contemporary state of international law, and was in fact
followed as such.169
Lord Mance in Keyu stated that ‘precedent is unlikely to be seen as so great an obstacle to
reconsideration of domestic law in the light of international development’. He also
recapitulated the scope of incorporation of customary international law in domestic law:
[O]nce established, [customary international law] can and should shape the
common law, whenever it can do so consistently with domestic constitutional
principles, statutory law (p. 68) and common law rules which the courts can
themselves sensibly adapt without it being, for example, necessary to invite
Parliamentary intervention or consideration.170
(D) Non-justiciability and act of state

(i) Non-justiciability
It was a long-standing position in English law that the Crown’s prerogative powers were
immune from judicial control. That is no longer so,171 although the extent of judicial review
depends on the subject matter.172
Despite these developments, certain areas of government activity connected with
international law remain generally off limits to the courts. In Abbasi, the Court of Appeal
was asked to require the Foreign Secretary to make representations to the US government
on behalf of British nationals detained in Guantanamo Bay. Although the Court was deeply
concerned by what it saw as US intransigence, it declined to make the orders requested.173
The courts are also extremely reluctant to pronounce on issues connected to the
deployment of armed forces.174
Another area which remains within the traditional non-justiciable Crown prerogative is
treaty-making:175 this (in conjunction with the doctrine of no direct effect) precludes most
adjudication on unincorporated treaties.176 There is, however, a measure of flexibility
here,177 and the courts have sought to reduce the effects of non-justiciability, including in
relation to unincorporated treaties. In the first place, courts are willing to interpret
unincorporated treaties where it is necessary to do so in order to determine rights and
obligations under domestic law and thereby ‘draw the court into the field of international
law’.178 In Shergill v Khaira, the Supreme Court stated:
[W]hen the court declines to … review the exercise of the Crown’s prerogative in
the conduct of foreign affairs, it normally refuses on the ground that no legal right
of the (p. 69) citizen is engaged whether in public or private law … But the court
does adjudicate on these matters if a justiciable legitimate expectation or a
Convention right depends on it. The same would apply if a private law liability was
asserted which depended on such a matter.179
In Occidental Exploration, the Court of Appeal held that an award made in favour of the
appellant under the bilateral investment treaty (BIT) between the US and Ecuador gave rise
to justiciable rights in the UK, even though the BIT was (unsurprisingly) not part of English
law.180 Similarly, in Al-Jedda,181 the claimant alleged that his detention in Iraq by British
forces was in breach of the UK’s obligations under the ECHR. In turn, the government
asserted that the claimant’s detention was not only justified by the need to ensure security
in Iraq, but also by the terms of Security Council Resolution 1546 of 2004, which qualified
the UK’s ECHR obligations by way of Article 103 of the Charter. Neither the Charter nor the
resolution had been incorporated into English law. The necessary foothold came from the
Human Rights Act 1998, which gave effect to the ECHR in UK law. As the Act provided that
ECHR rights were only applicable to the extent they were recognized on the international
law plane, the court was required to examine the effect of the resolution to determine the
scope of the ECHR in the particular circumstance.182
In the second place, courts have demonstrated that they are willing to consider
unincorporated treaties as part of the process of finding the UK to be in breach of its
obligations under international law, though the determination of breach will have no legal
effect of its own.183 Its use is most notable when illuminating rights present in municipal
law under the ECHR and particularly Article 15, which permits the UK to take measures
derogating from the Convention provided that such measures are not inconsistent with its
other obligations under international law. Thus, in A v Secretary of State for the Home
Department, Lord Bingham—determining the validity of a derogation under ECHR Article
15184 and the compatibility of the Anti-terrorism, Crime and Security Act 2001 with ECHR
Article 5—said:
What cannot be justified here is the decision to detain one group of suspected
international terrorists, defined by nationality or immigration status, and not
another. To do so was a violation of [ECHR] article 14. It was also a violation of
article 26 of the [International Covenant on Civil and Political Rights] and so
inconsistent with the United Kingdom’s other obligations under international law
within the meaning of [ECHR] article 15 …185
(p. 70) Thirdly, where the decision-maker explicitly relies on a treaty in making a decision,
the courts will apply normal standards of judicial review to the treaty as so relied on.186
(ii) Judicial restraint and foreign acts of state
Policy considerations of a similar kind have led courts to apply a further rule of non-
justiciability, holding a claim to be barred if it requires determination of the lawfulness or
validity of acts of a foreign state.187 This is a doctrine of English public law which, long
familiar in a general way, was clarified and confined by the Supreme Court in Belhaj v
Straw.188
Broadly, the doctrine prescribes that courts do not adjudicate on matters of international
law arising in disputes between foreign states. The modern source of the doctrine is Lord
Wilberforce’s statement in Buttes Gas that:
[T]he essential question is whether … there exists in English law a more general
principle that the courts will not adjudicate upon the transactions of foreign
sovereign states. … In my opinion there is, and for long has been, such a general
principle. … [It] is not one of discretion, but is inherent in the very nature of the
judicial process … I find the principle clearly stated that the courts in England will
not adjudicate upon acts done abroad by virtue of sovereign authority.189
Within this principle there are two overlapping doctrines: judicial restraint on the one hand,
and act of state on the other. The former is triggered by issues relating to the transactions
of states,190 and requires the court to exercise its discretion to determine whether it is
sufficiently equipped to handle the dispute. In Buttes Gas, the court would have been
required to address vexed questions of international law arising from the actions of two
emirates in the Arabian Gulf with regard to a contested island, Abu Musa, and two
competing oil companies claiming concessions within its territorial sea.
Judicial restraint is a discretionary principle,191 but where it applies it is a substantive bar
to adjudication, reflecting the incapacity of a national court to deal adequately with certain
issues on the international plane. Thus, it cannot be waived, even by the state(s)
concerned.192
(p. 71) The concept of act of state forms the hard core of the principle:193 it refers to the
non-justiciability in a national court of the acts of a foreign state within its own territory194
or, exceptionally, outside it.195 Thus, in Ex parte Johnson, it was held that once consent to a
re-extradition had been obtained by the UK from Austria under the European Convention on
Extradition,196 in the form of a diplomatic note, the court could not then proceed to inquire
into the quality of the consent so offered.197 As a domestic rule of law, it is distinct from the
doctrine of state immunity, a rule of international law.198 Justiciability in this context refers
to the act of determining the lawfulness or validity of a foreign act of state performed
within its own domain; the court is not prevented from taking note of its existence.199
As with the wider doctrine of non-justiciability, important exceptions to the doctrine of act
of state exist. The first is that the acts of a foreign state will be justiciable where their
recognition as lawful would be contrary to English public policy. The exception was
originally formulated in Oppenheimer v Cattermole with respect to gross human rights
violations,200 and was expanded in Kuwait Airways Corp v Iraqi Airways Co to include acts
of state carried out in clear violation of international law more generally. Kuwait Airways
concerned the seizure and removal of aircraft owned by Kuwait Airways during the illegal
invasion of Kuwait by Iraq in August 1990. But the scope of this exception is uncertain. Lord
Steyn stated that not every rule of public international law will create such an exception.201
Lord Nicholls (with whom Lord Hoffmann agreed) stated that the points of law before them
were ‘rules of fundamental importance’ and quoted Oppenheimer v Cattermole more
generally to the effect that ‘[i]nternational law, for its part, recognises that a national court
may properly decline to give effect to legislative and other acts of foreign states which are
in violation of international law.’ Moreover, the exception was applied more broadly to the
doctrine of judicial restraint as identified in (p. 72) Buttes Gas, based on the dictum by Lord
Wilberforce that abstention was predicated on a lack of ‘manageable standards’. As Lord
Nicholls noted, the breach of international law was ‘plain beyond dispute’, and was
acknowledged as such by Iraq with its acceptance of the Security Council-mandated
ceasefire; accordingly, ‘[t]he standard being applied by the court [was] clear and
manageable, and the outcome not in doubt.’202
Thus ‘clearly established’ rules of international law may be considered part of the public
policy of the UK,203 as are human rights more generally.204 In Belhaj v Straw,205 the
Supreme Court confirmed these precedents, justifying its conclusion as to justiciability of
acts of states under this exception on the basis of, inter alia: the peremptory nature of the
rules allegedly violated; the existence of clear applicable international law standards; the
otherwise justiciable conduct of British officials; and the lack of an alternative possibility for
judicial investigation.
The cases concerned the UK’s alleged involvement in the detention and maltreatment
(amounting to torture) of the applicants, who were foreign nationals, by foreign states
abroad (in Libya and Afghanistan). The UK being the only respondent, foreign state
immunity was irrelevant.206 Potential embarrassment to the UK was also largely
irrelevant.207
As to foreign act of state, the court drew a distinction between municipal law acts of state
(cases concerning the treatment of property and perhaps persons in a foreign state by a
state acting jure imperii)208 and international law acts of state (i.e. international
transactions stricto sensu wherever performed). As to the former category, the public policy
exception was variously formulated: thus Lord Mance referred to cases ‘where the alleged
conduct involves almost indefinite detention, combined with deprivation of any form of
access to justice and, for good measure, torture or persistent ill-treatment of an
individual’,209 Lord Sumption (with whom Lord Neuberger agreed) referred to ‘cases where
a foreign state executive has caused physical or mental harm to a claimant through an act
in the territory of that state which was unlawful under the laws of that state’.210
As to the latter (international law acts of state), the public policy exception was also
potentially applicable, and was applied in Belhaj for essentially the same reasons.211
(p. 73) A further exception arises where Parliament has rendered an issue which is
ordinarily beyond the competence of the court justiciable. In the first Pinochet case before
the House of Lords, Lord Nicholls noted that ‘there can be no doubt that the [act of state]
doctrine yields to a contrary intention shown by Parliament’. In that case, the definition of
‘torture’ in section 134(1) of the Criminal Justice Act 1988 and section 1(1) of the Taking of
Hostages Act 1982 in terms required the investigation of foreign officials in certain cases.
(E) The common law tradition in the united states

(i) Treaties
Formally US law views treaties and other international agreements as a source of law,212 as
described by Article VI§2 of the Constitution (the Supremacy Clause):
[A]ll Treaties made or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.213
As such, treaties are on a par with federal legislation, and prevail over laws enacted by the
states. As Justice Sutherland said in United States v Belmont:
Plainly, the external powers of the United States are to be exercised without regard
to state laws or policies … And while this rule in respect of treaties is established by
the express language of [Article VI] of the Constitution, the same rule would result
in the case of all international compacts and agreements from the very fact that
complete power over international affairs is in the national government and is not
and cannot be subject to any curtailment or interference on the part of the several
states … In respect of all international negotiations and compacts, and in respect of
our foreign relations generally, state lines disappear.214
A principal point of difference between the common law tradition as developed in the UK
and the tradition that emerged in the US is the method by which treaties are incorporated
into municipal law. In Foster v Neilsen,215 Justice Marshall adopted for the US a modified
version of the UK’s dualist model. At its heart was the distinction between self-executing
treaties, which by their terms could be incorporated into municipal law without more, and
non-self-executing treaties,216 which required enabling legislation to be effective.217
(p. 74) A central question within US jurisprudence on treaties is the process by which a
court determines that a treaty or other international agreement is self-executing. Here,
vigorous debate has been prompted by the Supreme Court’s decision in Medellin v Texas,218
which concerned the domestic effect within the US of the decision of the International
Court in Avena.219 There the International Court held that the US was in breach of its
obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR)220 to
provide consular notification to foreign nationals who are detained or arrested. The
consequence was an order for the ‘review and reconsideration’ of the cases of 51
individuals so affected. The question for determination by the Supreme Court in Medellin
was whether the Charter—which had not been the subject of an enabling Act of Congress—
was in this respect self-executing.
Earlier US decisions had referred to a variety of factors to determine the self-executing
status of the treaty under consideration: ‘the purposes of the treaty and the objectives of its
creators, the existence of domestic procedures and institutions appropriate for direct
implementation, the availability and feasibility of alternative enforcement methods, and the
immediate and long-range consequences of self- or non-self-execution’.221 In Medellin, the
Court gave greater weight to the text of the Charter. Chief Justice Roberts, speaking for the
majority, said of Article 94 (requiring that each Member comply with decisions of the
International Court to which it is a party):
The Article is not a directive to domestic courts. It does not provide that the United
States ‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that the Senate
that ratified the UN Charter intended to vest ICJ decisions with immediate legal
effect in domestic courts. Instead, ‘[t]he words of Article 94 … call upon
governments to take certain action.’222
On this basis, the majority concluded that as the Charter, the Optional Protocol to the
VCCR, and the Statute had not been incorporated into US law by way of legislation and the
treaties were not themselves self-executing, they could not be given judicial effect.223
In Medellin, the Court appears to have viewed the intention of US treaty-makers as
dispositive.224 In addition, although some commentators—and notably the Restatement
Third225—had previously taken the position that there was a presumption in favour of (p.
75) a treaty being self-executing, the Court in Medellin appears to have distanced itself
from such a notion, instead requiring that each treaty be considered on its facts, with
reference to text, structure, and ratification history.226 However, notwithstanding Medellin,
lower courts continue to apply the more nuanced test for self-execution advocated in the
Restatement Third.227 In addition, the Supreme Court’s emphasis on text in Medellin is not
universally shared.228
But an analogue of the UK’s presumption of compatibility is present in US law. In Murray v
Schooner Charming Betsy, Marshall CJ wrote that ‘an act of Congress ought never be
construed to violate the law of nations if any other possible construction remains’.229 The
canon was developed to resolve situations in which a treaty or rule of customary
international law conflicted with a statute passed later in time by Congress. Ordinarily, this
would result in the latter overriding the former. But Charming Betsy required later statutes
to be interpreted, if possible, consistently with the earlier international law obligations of
the US. As with the UK presumption of compatibility, the Charming Betsy canon is only
applicable where the statute is ambiguous on its face.230
Some courts have interpreted the canon to breathe life into non-self-executing treaties.
Such treaties may be held to have codified customary international law;231 more broadly
they represent international obligations entered into in good faith from which the US
presumably does not wish to depart.232
(ii) Customary international law
The traditional understanding is that the US relationship with custom is essentially monist
in character. This position was formulated early on in the Paquete Habana:
International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right
depending on it are duly presented for their determination. For this purpose, where
there is no treaty and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized nations.233
(p. 76) The conventional view of custom234 vis-à-vis the municipal law of the US is that it is
a source of law, first in the sense that state and federal courts may apply these rules to
determine a dispute and, secondly, in the sense that rules of custom, as per Charming
Betsy, are tools of interpretation.235 Thus, the Restatement Third:236 ‘[c]ustomary
international law is considered to be like common law in the US, but is federal law.’ This
basic position remains unchallenged: two comparatively recent Supreme Court decisions
saw no reason to depart from the Paquete Habana.237 But ‘[c]ustomary law does not
ordinarily confer legal rights on individuals or companies, even rights that might be
enforced by a defensive suit such as one to enjoin or to terminate a violation by the United
States (or a State) of customary international law.’238
Customary international law, however, has been the cause of considerable scholarly
friction,239 with some critics arguing that the monist incorporation of custom into municipal
law is inconsistent with principles of democratic governance.240 Dubinsky links these
concerns with emerging efforts to diminish the scope of custom in US municipal law,
principally through the undermining of the Charming Betsy canon.241 In Serra v Lapin, a
case concerning the consistency of prison wages with customary international law, it was
said that Charming Betsy ‘bears on a limited range of cases’242 and could not apply to
purely domestic matters that did not inject considerations of international comity.243
(iii) The Alien Tort Statute (ATS)
The ATS244 gives federal courts jurisdiction over cases where the applicable law is
customary international law where (1) the plaintiff is an alien, (2) the defendant is
responsible for a tort, and (3) the tort in question violates international law, including
customary international law. Since the ‘rediscovery’ of the ATS in the 1980s, it has been
extensively litigated, breathing life into custom as an element of domestic law in the US.
Dozens of actions have been brought, some resulting in sizeable settlements. The Supreme
Court in Sosa v Alvarez-Machain,245 however, narrowed the scope of those customary
international law rules the breach of which could grant a right of action under the ATS to
‘norm[s] of an international character accepted by the civilized world’ that are ‘defined with
a specificity comparable to (p. 77) the features of the 18th-century paradigms we have
recognized’,246 being those norms with a definite content and similar international
acceptance to the rules extant at the time the Act was passed (e.g. offences against
ambassadors, violations of safe conduct, and piracy). Sosa was applied in Sarei v Rio Tinto,
with the majority there holding that the plaintiffs’ claims of genocide and war crimes fell
within the ATS, whereas claims alleging crimes against humanity arising from a blockade
and racial discrimination did not.247 Justice Souter’s dictum in Sosa—that the ATS was
intended to apply only to a ‘narrow set of violations of the law of nations, admitting of a
judicial remedy and at the same time threatening serious consequences in international
affairs’248—has also been relied on to dismiss claims which fail to evidence potential for
such consequences.249
The scope of application of the ATS was further limited in Kiobel v Royal Dutch Petroleum,
where the Supreme Court held that the presumption against extraterritorial application:
… applies to claims under the ATS … [W]here the claims touch and concern the
territory of the United States, they must do so with sufficient force to displace the
presumption … [I]t would reach too far to say that mere corporate presence
suffices.250
(iv) Non-justiciability of political questions and acts of state
The doctrines of act of state and the non-justiciability of political questions are analogous to
the UK doctrines already discussed. Both are in a state of flux.
Like the English conception of non-justiciability, the political question doctrine seeks to
remove from judicial scrutiny certain politically sensitive questions thought inappropriate
for judicial resolution.251 It may be traced back to Marbury v Madison,252 though the most
authoritative modern statement was in Baker v Carr, which identified six factors that might
render a dispute non-justiciable:
Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a
court’s undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the (p. 78) potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.253
Despite the litany of factors given in Baker v Carr, the doctrine has been applied only rarely
and idiosyncratically by the Supreme Court and others in a few discrete domestic fields,
including the political status of foreign countries,254 non-invocation of immunity,255 foreign
affairs, and the deployment of armed forces.256 Thus, in Greenham Women against Cruise
Missiles v Reagan,257 the decision to deploy American cruise missiles in the UK was held
non-justiciable.
As was emphasized in Klinghoffer, ‘the doctrine is one of “political questions”, not “political
cases”’.258 Similarly, in Kadić v Karadžić, it was said:
Although we too recognize the potentially detrimental effects of judicial action in

cases of this nature, we do not embrace the rather categorical views as to the
inappropriateness of judicial action … Not every case ‘touching foreign relations’ is
nonjusticiable … and judges should not reflexively invoke these doctrines to avoid
difficult and somewhat sensitive decisions in the context of human rights. We
believe a preferable approach is to weigh carefully the relevant considerations on a
case-by-case basis. This will permit the judiciary to act where appropriate in light of
the express legislative mandate of the Congress … without compromising the
primacy of the political branches in foreign affairs.259
The doctrine of act of state in the US developed alongside its UK counterpart, and to a
certain extent influenced its development.260 It is presented in the Restatement Third as
follows:
In the absence of a treaty or other unambiguous agreements regarding controlling

legal principles, courts in the United States will generally refrain from examining
the validity of a taking by a foreign state of property within its own territory, or
sitting in judgment on other acts of a governmental character done by a foreign
state within its own territory and applicable there.261
(p. 79) The doctrine emerged in Underhill v Hernandez,262 which rooted the concept in
considerations of international comity, and presented it as an iron rule from which no
derogation was permitted:
Every sovereign state is bound to respect the independence of every other

sovereign State, and the courts of one country will not sit in judgment on the acts of
the government of another done within its own territory. Redress of grievances by
reason of such acts must be obtained through the mean open to be availed of by
sovereign powers as between themselves.263
Over time, however, the rationale of the doctrine shifted and in the process it became more
flexible.264 In Banco Nacional de Cuba v Sabbatino, the Supreme Court repositioned the act
of state doctrine and abandoned the Underhill justification of state sovereignty as
determinative, though sovereignty still ‘bears on the wisdom of employing [it]’.265 Rather,
the Court aligned acts of state—like the political question doctrine—with considerations of
the separation of powers and concerns as to possible adverse effects on US foreign
policy.266
The doctrine was significantly restricted in its operation by the Supreme Court in
Kirkpatrick.267 Two American contractors had bid for a construction contract with the
Nigerian Air Force. The winner secured the contract through bribery, and the loser sued
under US anti-racketeering laws. The Court held that the act of state doctrine will only
apply where a US court is called upon squarely to assess the validity of the act in question
under the sovereign’s own laws.268 Moreover, the doctrine applies only to ‘official’ or
‘public’ acts of the sovereign (acts jure imperii);269 thus, it will not apply to acts performed
in a private capacity (acts jure gestionis).270
The act of state doctrine is subject to a series of further exceptions. It will not apply where
a US court can look to a treaty or other ‘unambiguous instrument regarding controlling
legal principles’.271 Secondly, under the Bernstein exception,272 the State Department can
seek to guide the courts as to the applicability of the doctrine. The (p. 80) status of this
exception is controversial, however.273 The Supreme Court in Kirkpatrick placed special
emphasis on the judiciary’s responsibilities under Article III of the Constitution, placing the
exception further in doubt.274
The third exception is similarly inchoate, and may arise where the act of state complained
of is ‘commercial’ rather than ‘official’. This distinction can be seen as a continuation of the
public/private discussion surrounding the scope of the original doctrine and has never been
adopted squarely by the Supreme Court.275 But the situation is characterized by divisions
and debate between and even within the various Courts of Appeals.276
The fourth, fifth, and six exceptions to the act of state doctrine are statutory in origin. The
fourth is relatively straightforward: the Federal Arbitration Act277 provides expressly that
‘[e]nforcement of arbitration agreements … shall not be refused on the basis of the Act of
State doctrine.’278 The fifth was an amendment introduced by the outraged Senator
Hickenlooper of Iowa in response to the decision in Sabbatino. The so-called ‘Second
Hickenlooper Amendment’279 provides generally that the act of state doctrine shall not
apply to claims concerning alleged expropriations in violation of international law. It has,
however, been interpreted narrowly by the courts, which have held that the amendment
applies only where specific property directly involved in the unlawful act of state is located
in the US.280 Other courts have held that the amendment will only apply in relation to
property rights, as opposed to rights arising in contract. The sixth statutory exception may
arise in the case of the Torture Victims Protection Act,281 which allows the filing of civil
suits against individuals282 who, acting in an official capacity for a foreign nation, have
committed torture or extrajudicial killing.
4. International law in the civil law tradition

It is misleading to speak of a civil law approach to the reception of international law; since
no uniform approach can be identified. A few general observations may be made before
moving on to consider five specific case studies (France, Germany, Italy, Russia, and the
Netherlands).
(p. 81) With some notable exceptions, such as the Netherlands, European jurisdictions
approach customary international law from a monist perspective, and indeed many give it
some form of constitutional standing. Europe is also emblematic of the monist approach to
treaty law, with treaties—to the extent that they are capable of standing alone—given direct
effect. This is not to say that the executive is given a free hand to make treaties, but rather
that the constitutions of states such as France, the Russian Federation, and the Netherlands
provide that the legislature play a role in the treaty-making process prior to signature and/
or ratification. Finally, with regard to judicial avoidance techniques, the European countries
tend to view the non-justiciability of foreign acts of state as an Anglo-American doctrine.
They do, however, practice varying degrees of judicial restraint with regard to the acts of
their own government.
(A) Customary international law in the European tradition

As a general rule, the civil law jurisdictions adopt a monist stance with regard to customary
international law, with incorporation frequently occurring at a constitutional level.
(i) France
In France, this situation subsists despite the fact that the 1958 Constitution of the Fifth
Republic makes no reference to custom. Rather, it contains in its preamble a renvoi to its
predecessor, the 1946 Constitution of the Fourth Republic, which had stated that ‘the
French Republic, true to its traditions, conforms to the rules of international public law’.283
The only relevant substantive provision in the 1946 preamble states that: ‘[s]ubject to
reciprocity, France shall consent to the limitations upon its sovereignty necessary to the
organization and preservation of peace.’284 These are ambiguous guidelines for the
incorporation of custom.285 But the Conseil Constitutionnel appears to have accepted the
applicability of custom into the French system and attempts to ensure the compatibility of
French legislation with it.286 For example, by referring in its decision of 9 April 1992287 on
the Treaty of Maastricht288 to the ‘rules of public international law’, the Conseil d’État
accepted ‘the rule pacta sunt servanda which implies that all treaties that are in force bind
the parties and must be executed by them in good faith’.
(p. 82) Some scholars seek to draw comparisons between the approach of the Conseil
Constitutionnel and the supposedly negative approach of the Conseil d’État.289 This is not
entirely unfair: as noted by Decaux,290 whilst the latter may recognize the existence of
custom it tends to bestow on it an infra-legislative character, at least insofar as it cannot
prevail over later domestic laws.291
(ii) Germany
The position is much more straightforward in Germany: the Basic Law provides in Article 25
that ‘[t]he general rules of public international law form part of the Federal law. They take
precedence over the laws and directly create rights and duties for the inhabitants of the
Federal territory.’292 The first sentence of Article 25 establishes custom as part of German
law; the second elevates it in the municipal hierarchy of norms, such that any internal
legislation deemed inconsistent will be void. Custom is subject to the provisions of the Basic
Law itself. But the Federal Constitutional Court has developed an unwritten principle on the
commitment of the Basic Law to international law,293 requiring all municipal law—including
the Basic Law itself—to be interpreted consistently with international law to the extent
possible.
In general, German judges may take judicial notice of the rules of customary international
law and apply them as such. In case of doubt as to whether a customary rule exists or is
capable of creating individual rights, Article 100(2) of the Basic Law requires the matter to
be referred to the Federal Constitutional Court, which by tradition includes a public
international law specialist.
(iii) Italy
A similar position has been taken by Italy, with article 10(1) of the Constitution of 1948
providing that ‘[t]he Italian legal system conforms to the generally recognized rules of
international law.’ This provides a vehicle for the incorporation of custom into municipal
law, though the ordinary method of integration via legislation remains especially for those
norms of customary international law which are considered to be non-self-executing. Within
the domestic hierarchy, therefore, custom assumes the status of a constitutional directive,
and municipal laws will be invalid to the extent of any inconsistency.
(p. 83) This leaves open the question whether custom is to be considered superior to the
Constitution itself, an issue addressed by the Constitutional Court in Russel v Societa
Immobiliare Soblim,294 which concerned a possible conflict between diplomatic immunity
and article 24(1) of the Constitution guaranteeing an individual right of suit. There it was
held that custom—by way of the lex specialis rule—could only prevail over the terms of the
Constitution where the norm in question was formed prior to the entry into force of the
Constitution. More recently, however, the court appears to have adjusted this rigidly
chronological rule, and has since stated that ‘fundamental principles of the constitutional
order’ and ‘inalienable rights of the human being’ are the only limitations on the
incorporation of custom.295 Thus, custom is considered a source of law that may override
the Constitution as lex specialis to the extent that is does not conflict with a fundamental
rule of the constitutional order concerning an inalienable human right.296 As stated by the
Corte di Cassazione, ‘[f]undamental human rights are among the constitutional principles
which cannot be derogated from by generally recognized rules of international law.’297 This
was reaffirmed in controversial circumstances. Following the International Court’s finding
that Italy had failed ‘to respect the immunity which the Federal Republic of Germany enjoys
under international law by allowing civil claims to be brought against it’,298 domestic courts
initially gave effect to the customary obligation299 and specific legislation was enacted to
ensure the judiciary’s compliance with the ruling.300 However, the matter was eventually
referred to the Constitutional Court,301 which held that the incorporation of this customary
obligation was precluded ‘in case of actions for damages for war crimes and crimes against
humanity’ due to the guarantee of inviolable rights and the right of access to a court for
their alleged violation enshrined within the Constitution.302
Within the Italian system, article 10(1) represents an unusually powerful method of direct
incorporation with respect to custom; it has been said to be a ‘permanent converter’ of such
norms.303 It has been held to extend to peremptory norms as well (p. 84) as general
principles of international law.304 Thus. all domestic legal institutions have jurisdiction to
verify the content of customary international law and apply it to relevant municipal statutes.
The courts are considered independent in this respect and intervention by legislature or
executive is not permitted. Nor is the court required to seek proof from a party seeking to
apply a customary rule any more than any other rule of Italian law.
(iv) Russian Federation
Perhaps the most unusual situation is that of the Russian Federation. On the surface, the
Russian position owes much to the strongly monist attitude towards custom seen in
Germany and Italy. Article 15(4) of the Constitution of the Russian Federation of 1993
provides that the ‘universally recognized principles and norms of the international law and
the international treaties of the Russian Federation shall be a component part of its legal
system’.305 This is not an ordinary constitutional norm; it is part of the first chapter of the
Constitution, which may only be amended via a complicated special procedure. Moreover,
the rule has been replicated in all codes and federal laws adopted after the Constitution
entered into effect.306 This contrasts with the system under the Soviet Union, where
invocation of international law by the courts was rare.
Nonetheless, the reality differs from the theory of Article 15(4). Russian courts are ill-
equipped to determine the content of custom and the Supreme Court offers the lower
courts very little in the way of useful direction. In the 10 October 2003 ruling of the Plenum
of the Supreme Court, as amended in 2013, it was held that:
The universally recognized principles of international law should be understood as

the basic imperative norms of the international law, accepted and recognized by the
international community of states as a whole, deviation from which is inadmissible.
The recognized principles of international law include, inter alia, the principle of
universal respect for human rights and the principle of fulfilment of international
obligations in good faith. The universally recognized norms of international law
should be understood as rules of conduct, accepted and recognized as legally
binding by the international community of states as a whole.307
The failure to articulate the procedure by which custom is to be received into Russian
municipal law underpins Tikhomirov’s observation that Russian courts tend not to apply
customary international law, but prefer to have reference to the corpus of conventional law
(p. 85) that Russia has accumulated.308 Nonetheless, custom is applied on occasion, for
example in Re Khodorkovskiy,309 where the applicant brought proceedings to have a
portion of the Rules of Internal Discipline in Penitentiary Institutions invalidated. The
provision prevented a prisoner from obtaining access to a lawyer or other representative
within the prisoner’s working hours, a position contrary to customary international law. The
Cassation Chamber of the Supreme Court held that by virtue of Article 15(4) of the
Constitution, this norm had been integrated into the municipal law of the Russian
Federation, and upheld the decision of the Supreme Court invalidating the offending
regulation.310
(v) The Netherlands
In contrast to its position on treaties, the Constitution of the Netherlands is silent as to the
municipal effect of custom. In principle, it does not prevail over domestic legislation, the
Constitution, or the 1954 Charter for the Kingdom.311 But several statutes seek to
incorporate custom into municipal law on a sui generis basis; where this occurs and the
norm in question is self-executing, it will prevail over other domestic laws.312 In certain
other instances, custom may be integrated without the need for implementing legislation,
though custom will only take priority over delegated legislation. On those occasions where
the Dutch courts make reference to custom, it is considered appropriate for them to take
into account the views of the government, which represents the state in international affairs
and is as such considered to be a law-making actor,313 unless the custom in question is so
clear that no further input is required.
(B) Treaties and national law in the European tradition
A relatively common theme between European jurisdictions is the supremacy of treaties
over domestic law. For this reason, European constitutions will generally prescribe careful
controls over their signature and ratification.
(i) France
The French Constitution provides in article 55 that:
Treaties or agreements duly ratified or approved shall, upon publication, prevail

over Acts of Parliament, subject, with respect to each agreement or treaty, to its
application by the other party.
(p. 86) This places treaties at a level superior to ordinary legislation but inferior to the
Constitution.314 But the Conseil Constitutionnel does not consider treaties to form part of
the corpus of constitutionality (i.e. constitutional norms in their own right), meaning that it
is spared the ordeal of assessing the conformity of every new treaty or international
agreement with those that came before it.315 Article 54 does provide some form of
constitutional oversight by way of referral ‘from the President of the Republic … the Prime
Minister … the President of one or the other Houses or from sixty Members of the National
Assembly or sixty Senators’. Where the Conseil declares a proposed agreement
incompatible, revision of the Constitution prior to ratification under article 52 or 53 is
required or the treaty will need to be abandoned.316
Insofar as the actual incorporation of treaties is concerned, the Constitution distinguishes
between ordinary treaties, which may be signed and ratified by the President under article
52 and those treaties which require an additional act of Parliament in order for ratification
to occur (art 53):
Peace Treaties, Trade agreements, treaties or agreements relating to international

organization, those committing the finances of the State, those modifying provisions
which are the preserve of statute law, those relating to the status of persons, and
those involving the ceding, exchanging or acquiring of territory, may be ratified or
approved only by an Act of Parliament.
They shall not take effect until such ratification or approval has been secured.
The category of treaties defined by article 53 is potentially broad, rendering France in

respect of most significant agreements effectively dualist,317 though it claims to be a monist
jurisdiction in the sense that no directly implementing statute is required to give a duly
concluded and published treaty domestic effect. The article 53 division does not correspond
to any taxonomy found elsewhere, and thus irrespective of whether ratification by
Parliament is required prior to signature, France will incur an international obligation upon
signature.
As stated in article 55 of the Constitution, subject to the conditions contained therein, a
treaty will prima facie have supremacy over domestic law. Treaties will ordinarily be held to
be self-executing, save where (1) the treaty in question contains only obligations directed to
and as between states or (2) it cannot be applied without (p. 87) legislative elaboration. The
obstacle course does not end there, however: the Conseil Constitutionnel has proved
curiously reticent when called upon to assess the conformity of domestic laws with
published treaties.318 This may be explained by the refusal of the Conseil to give
constitutional status to international norms,319 thus allowing for the Cour de Cassation and
Conseil d’État, which have no jurisdiction to exercise constitutional control, to assess the
conformity of later laws with treaties. The jurisprudence of the Cour de Cassation is
accordingly more forthright: in Cafés Jacques Vabre,320 it was held that the EEC Treaty was
to be applied over the French Customs Code, even though the latter was later in time. The
Conseil d’État went further still in the Gardedieu judgment, noting that the responsibility of
the state is:
susceptible to being engaged … because of obligations that belong to it to ensure

the respect for international conventions by public authorities, to make amends for
all prejudices that result from the intervention of a law that is adopted in disregard
of the international obligations of France.321
When applying this principle, French courts must comply with the terms of the Constitution.
A treaty that has not been published in the Journal Officiel cannot be invoked before a judge
and will not have domestic effect, even if in force internationally.322 The court will also be
required to assess the condition of ‘reciprocity’ in article 55, though the Conseil
Constitutionnel has somewhat narrowed the scope of this caveat such that it does not have
to apply to all treaties,323 either on the basis of the subjective intention of the legislature in
ratifying it or the objective character of the rights contained within the treaty.324 Thus,
when examining the ICC Statute,325 the Conseil stated that the obligations that follow from
it ‘apply to each of the State parties independently from conditions for their execution by
other parties; that thus the reservation of reciprocity mentioned in article 55 of the
Constitution is not to be applied’.326 Where the issue is raised before the Conseil d’État, it
would previously consult the Ministry of Foreign Affairs as to whether reciprocity exists.327
It generally confined application of the doctrine to bilateral treaties, presumably due to the
difficulty of monitoring international participation in multilateral treaties of an (p. 88)
objective character.328 Following the decision of the European Court of Human Rights in
which this practice was considered to be a violation of the right to fair trial,329 the Conseil
d’État has taken upon itself to rule whether the condition of reciprocity is satisfied, albeit in
the light of the Ministry of Foreign Affairs’ observations.330
(ii) Germany
Again, the position in Germany is more direct. Article 59(2) of the Basic Law bestows on the
legislature the capacity to regulate the treaty-making power of the executive as follows:
Treaties that regulate the political relations of the Federation or relate to subjects
of federal legislation require the consent or participation, in the form of a federal
statute, of the bodies competent in any specific case for such federal legislation.
Due to the broad wording of Article 59(2), most treaties concluded by Germany will require
prior legislative ratification, published in the Bundesgesetzblatt.331 Following entry into
force of the treaty, the German courts will apply it as part of national law.332 Thus, a treaty
stands on a similar footing to an ordinary statute and may be repealed expressly or
impliedly by later legislation, though there is a heavy presumption against this.333 The
views of the executive will not be taken into account due to a fairly strict separation of
powers and the total absence of any amicus curiae procedure by which it might make itself
heard.334
In applying treaties, German courts recognize the distinction between self-executing and
non-self-executing treaties, though there is a certain tendency to assume the latter. A treaty
provision will be considered non-self-executing where (1) the treaty excludes direct
application, (2) the treaty refers to the necessity of further implementation by states
parties, either nationally (by decree) or internationally (by further interstate agreements),
and (3) the treaty provision in question cannot be applied directly as it (a) does not
designate the responsible administration, (b) does not define a necessary administrative
procedure, or (c) does not designate the jurisdiction of a specific court.335 The Federal
Constitutional Court has a special role to play in exercising judicial review of lower courts
beyond what would be appropriate in ordinary domestic cases:
[T]he Federal Constitutional Court is also competent to prevent and remove, if

possible, violations of public international law that consist in the incorrect
application or non-observance by German courts of international law obligations
and may give (p. 89) rise to international law responsibility on the part of Germany
… In this, the Federal Constitutional Court is indirectly in the service of enforcing
international law and in this way reduces the risk of failing to comply with
international law. For this reason, it may be necessary, deviating from the customary
standard, to review the application and interpretation of international law treaties
by the ordinary courts.336
Under this system, problems may arise where a treaty requiring implementation via
domestic legislation refers matters to an international tribunal which then issues a decision
inconsistent with a pronouncement of the Federal Constitutional Court. This occurred in
2004, where the European Court of Human Rights ruled the developed approach of the
Federal Constitutional Court with respect to the right to privacy inconsistent with ECHR
Article 8.337 As a result, the court made a pronouncement as to the rank and role of the
ECHR within the German legal order:338 it held that while a constitutional complaint could
only be based on an alleged violation of fundamental rights guaranteed in the Grundgesetz,
and not on the ECHR as such, the ECHR nonetheless formed part of the legal order. Thus,
the German courts were required to take heed of the ECHR as interpreted by the European
Court of Human Rights, with failure to do so being grounds for a constitutional
complaint.339
(iii) Italy
The Italian Constitution makes no express provision for the incorporation of international
treaties into municipal law; accordingly, a treaty will produce no direct effect unless it has
been integrated via legislation.340 Two methods for this are usually identified:341 the
‘special’ method, which incorporates the treaty into law via a short statute with the treaty
annexed; and the ‘ordinary’ method, which reformulates and interprets the treaty before
amending national legislation in order to achieve implementation. The two are on occasion
combined. The ordinary procedure is utilized wherever the treaty is incapable of standing
on its own two feet as a national law, and therefore requires legislative elaboration, with the
special method used where international norms ‘have an inherent aptitude—to be
ascertained on a case-by-case basis—to be directly applied in the domestic order’.342
Legislative ratification via the special method will usually contain two operative provisions:
an article authorizing ratification, and an article ordering ‘full implementation’ (p. 90) of the
treaty. The latter is not a constitutional requirement. The use of the special method will also
indicate that the legislature and executive consider the treaty in question to be self-
executing. In applying a treaty ratified through the use of the special method, the courts
need not defer to the other organs of state, though they are bound to take into account
treaty reservations that the executive or legislature may formulate.343
The Italian Constitution was amended by a Constitutional Law of 18 October 2003 which
introduced, inter alia, a new article 117(1). This states that ‘[t]he legislative power shall be
exercised by the State and the Regions in compliance with the Constitution and with the
constraints deriving from European Union legislation and international obligations.’ This
provision has been interpreted by the Constitutional Court as meaning that provisions of
those treaties that are in conformity with the Constitution as regards their content and the
procedure for their adoption have indirectly a constitutional status which makes them
prevail over ‘ordinary’ laws. This result is obtained by a case-by-case mechanism: a judge
who considers that a domestic law provision is incompatible with a treaty, or with a
customary international rule, may submit to the Constitutional Court the question of non-
conformity of that law with article 117(1). The Constitutional Court has in various cases
held legislation to be contrary to article 117(1), and abrogated them because of their non-
conformity with the ECHR.344 Article 117 has not yet been applied to other treaties or to
customary rules.
As with customary international law, treaties concluded by the Russian Federation are
formally integrated into its municipal legal system by virtue of Article 15(4) of its
Constitution.345 Article 15(4) goes on to state that ‘[i]f other rules have been established by
an international treaty of the Russian Federation than provided for by law, the rules of the
international treaty shall apply.’ This gives an international treaty priority over domestic
law, at least as a matter of principle;346 it does not, however, state whether a treaty has to
fulfil certain conditions to gain such priority.347
The Constitution is unclear as to the rank of treaties.348 According to Article 125(2)(d), the
Constitutional Court may be requested ‘to consider cases on the correspondence to the (p.
91) Constitution of … international treaties and agreements … which have not come into
force’. In one case concerning such a request, the court clarified that ‘the rules of an
international treaty, if they contradict [the Constitution’s] provisions, cannot find
application’.349 This also applies to decisions of the European Court of Human Rights.
Although the Supreme Court stated that under the legislation ratifying the ECHR350 ‘the
legal positions of the European Court of Human Rights … contained in the final judgments
of the Court delivered in respect of the Russian Federation are obligatory for the courts’,351
the Constitutional Court found that this obligation extended only to decisions compatible
with the Constitution.352 Subsequent legislation created procedures enabling the
Constitutional Court to decide on the impossibility of execution of treaty bodies’
decisions.353
As clarified by the Supreme Court, in order for a treaty to enter the Russian legal system, it
must be signed and ratified.354 Under a federal law of 1995, a treaty which is self-executing
and officially published has direct legal effect within the Russian legal system.355 As Butler
observes, however, substantial numbers of USSR treaties were in all likelihood never
gazetted and are thus not subject to application by the Russian courts.356 The Supreme
Court gave some guidance in determining the self-executing character of a treaty, giving
particular weight to ‘indications, contained in the treaty, regarding obligations of Member
States to amend national laws of these states’.357 Where a treaty is not self-executing,
municipal effect may be provided via legislative enactment and embellishment.
In interpreting and applying international conventions, Russian courts have proved
punctilious in enforcing these requirements,358 applying them also to provisionally
applicable treaties although the federal law of 1995 does not explicitly require publication
for domestic legal effect in this context.359 Insofar as interpretation is concerned, the courts
may have recourse to the views of the Ministry of Foreign Affairs, but will ordinarily apply
VCLT Articles 31 and 32. Their scope of review does not, however, extend to assessing the
content or legitimacy of reservations made by the government.360 Failure to apply relevant
treaty provisions, or error in their application, may be corrected on appeal.361
(p. 92) Article 15(4) was discussed at some length by the Russian Constitutional Court in
Anchukov & Gladkov v Russia.362 The case concerned the contentious issue of prisoners’
voting rights. The European Court of Human Rights had held that what it construed as a
complete ban on prisoners voting contravened Article 3 of Protocol 1 to the European
Convention. The Constitutional Court held that the decision did not need to be implemented
in terms, since it contradicted Article 32(3) of the Russian Constitution. It nonetheless left it
open for the legislature and the courts to adapt Russian legislation and judicial practice so
as to allow at least a measure of compliance with the European Court’s judgment.363
(v) The Netherlands
With respect to treaties, the system of incorporation described by the Netherlands sits the
furthest towards the monist end of the spectrum. All treaties binding on the Netherlands as
a matter of international law are automatically incorporated into the Dutch municipal legal
system, without any need for implementing legislation. The rule is not constitutional per
se,364 but may be traced back to a 1919 decision of the Supreme Court.365 The historical
rationale for the principle is only partly satisfied by the democratic fact that treaties
entered into by the Netherlands must be approved by Parliament. Rather, as Nollkaemper
notes,366 it is more a reflection of the Netherlands’ generally accepting attitude towards
international law, as reflected in the constitutional imperative that the Netherlands actively
promote the development of the international legal order.367
Due to the unusual efficiency of the Dutch system, careful control is exercised over the
treaty-making process by the bicameral legislature of the Netherlands, the States-
General.368 Although the government is directly responsible for the negotiation of treaties,
the legislature must be kept informed throughout the process of negotiation and updated
regularly.369 It may also add interpretive declarations or reservations to the bill approving
the treaty, which are then incorporated by the (p. 93) government when the treaty is
formally concluded.370 Once the text is finalized and approved by the Council of Ministers,
it will be referred to the legislature prior to final signature or ratification and accompanied
by an explanatory memorandum, consisting primarily of an article-by-article commentary.
Article 91(1) of the Constitution provides that ‘[t]he Kingdom shall not be bound by treaties,
nor shall treaties be denounced without the prior approval of Parliament.’ It goes on to
state, however, that ‘cases in which approval is not required shall be specified by Act of
Parliament’, leading the Law on Treaties to create several significant loopholes by way of a
list of exceptions contained in Article 7.371 Furthermore, both the Constitution and the Law
on Treaties provide for the facility of merely tacit approval.
Treaties will ordinarily be approved by a simple majority within the States-General. Where,
however, a proposed treaty conflicts with a provision of the Constitution, Article 91(3)
provides that a two-thirds majority in both the upper and lower houses will be required for
approval to be granted. Once approved, the provisions of self-executing treaties will on a sui
generis basis override the Constitution, making the Netherlands one of the few jurisdictions
in the world that places international law obligations above its constitutional instrument
within the domestic legal order. This much is provided in Article 94 of the Constitution,
which provides that ‘[s]tatutory regulations in force within the Kingdom shall not be
applicable if such application is in conflict with provisions of treaties or of resolutions of
international organizations that are binding on all persons.’ The inclusion of the caveat
‘binding on all persons’ is an important one, and has been interpreted as excluding those
treaty provisions that require further parliamentary action in order to take effect (i.e. non-
self-executing provisions).372 The question of direct effect is resolved by the courts first by
reference to the intention of the states parties to the treaty, with the court then resorting to
a textual analysis where intention cannot be determined.373 Even if a treaty provision
explicitly requires the adoption of measures at the domestic level to achieve a certain
‘standard of protection’, the provision is still deemed to be self-executing if the standard ‘is
sufficiently precise’ to be applied ‘unconditionally as an objective right within the judicial
legal system’.374 Even without direct effect, treaties may still play a role in the
interpretation of legislation: ‘Dutch courts should, as far as is possible, interpret and apply
Dutch law in such a way that the State meets its treaty obligations.’375
(p. 94) (C) Non-justiciability in the European tradition
As with customary and conventional international law, the question of judicial abstention or
intervention in state affairs is the result of choices internal to each legal system.376
(i) France
In France, this is represented by the doctrine of acte de gouvernement, which will exclude
judicial review of an executive decision where it either (1) ‘project[s] onto the international
plane the manifestation of the wishes of the French authorities and consequently only [has]
meaning in the context of the relations between the French State and an international
organization or another State’; or (2) ‘exclusively [involves] an assessment of the
appropriateness of action from the standpoint of foreign policy’.377 The Conseil d’État has
confirmed that the question is one of the competence of French tribunals and not the
admissibility of the claim.378 The doctrine has been applied, inter alia,379 to the exercise of
government powers to protect French nationals abroad,380 the decision whether or not to
publish an international agreement,381 an alleged omission in the conduct of relations with
a foreign government,382 the vote of a minister in the European Council,383 the
establishment of an international maritime exclusion zone,384 a refusal to enter into
international negotiations with a foreign state or institute proceedings before the
International Court,385 the suspension of an international agreement,386 the suspension of
scientific cooperation with Iraq following the invasion of Kuwait,387 the Prime Minister’s
implied refusal to submit a bill to Parliament to transpose a framework decision of the
EU,388 the government’s opposition to holding the Syrian presidential elections on French
territory,389 and the nomination of a particular individual for a judgeship at the
International Criminal Court.390 It was applied to the decisions to deploy French troops
against Yugoslavia during the Kosovo War391 and to allow US/UK aircraft to access French
airspace during the Second Gulf War.392
The French judiciary will only consider an acte de gouvernement where it has a definable
international flavour; where the act is based primarily on considerations (p. 95) relating to
public policy or the national public services, whether carried out at home or abroad, it will
be justiciable.393 The withdrawal of a French cooperation assistant serving abroad was
considered not so much a sovereign act as an act of management carried out by the
national public services responsible for cooperation.394 The same may be said of the
allegedly inadequate protection of foreign diplomats by French police395 and the
destruction by the French Navy of a ship abandoned on the high seas.396
The doctrine of acte de gouvernement has been the subject of erosion, however, under what
Advocate-General Darmon referred to as the theory of ‘detachable acts’. On this approach,
an act that might prima facie appear non-justiciable may nevertheless be subject to the
courts’ jurisdiction ‘if the French authorities have some independent choice with regard to
the procedure by which they perform their international obligations and can themselves
take the initiative as regards the means by which they comply with those obligations’.397
Decisions as to extradition have proved particularly susceptible to such separation, as seen
in UK and Governor of Hong Kong. There, the British government applied to the Conseil
d’État for the review of a decision by the French government not to extradite a Malaysian
businessman accused of serious fraud and financial mismanagement in Hong Kong.
Commissaire du Gouvernement Vigouroux argued that judicial review of extradition matters
would not impede the government’s freedom of action in foreign policy. Accordingly, a
decision rejecting extradition was severable from the wider field of bilateral diplomatic
relations and judicial review was permitted.398
(ii) Germany
The German constitutional model is characterized by a strong system of judicial review that
virtually eliminates non-justiciability. Judicial review of executive acts is not an implied right
but a deliberate choice in a system that establishes a court for the purpose of assessing the
conformity of executive acts and legislation with the Basic Law. Article 19(4) of the Basic
Law provides: ‘Should any person’s right be violated by public authority, recourse to the
court shall be open to him.’ Article 93(1)(1) further permits suits to be launched between
different organs of the federal government on questions of competence.399 The Federal
Constitutional Court was created to sit outside the ‘ordinary’ court system and hear those
matters associated with the enforcement of the Basic Law.400
(p. 96) Although prima facie applying only to those basic rights contained within the Basic
Law itself (which, it must be remembered, are to be interpreted in accordance with
international law, itself superior to domestic statute),401 this limitation has been eroded
through the breadth of the rights in question,402 and subsequent judicial expansion through
interpretation. An affected citizen may invoke the interests of third parties403 and questions
of federalism and the separation of powers in bringing a suit.404 Even more remarkably,
Article 93(1)(2) permits a quarter of the members of the Bundestag to file an action directly
in the Federal Constitutional Court challenging the constitutionality of a piece of legislation;
thus, when a divisive piece of legislation is passed by a narrow majority, it can reasonably
be expected to get a second airing before the court.405
Within the German constitutional system, there is no tradition of automatic judicial
deference to the executive in regard to foreign policy.406 This potentially extends to
questions surrounding the deployment of Germany’s armed forces.407 When the German
government sought to join NATO forces charged with enforcing resolutions of the Security
Council in Yugoslavia, this was challenged in International Military Operations.408 The
Federal Constitutional Court held that such action was permissible so long as it remained
within the framework of a ‘system of mutual collective security’.409 The power of review
further extends to the treaty-making power of the German state, with the court intervening
to assess and provide texture to both the Basic Treaty410 between the German Democratic
Republic (GDR)411 and the Federal Republic of Germany (FRG) and the Maastricht
Treaty.412
Confusingly, however, some hints of an aversion to ‘political questions’ may on occasion be
detected. In Cruise Missiles (Danger to Life),413 a number of FRG citizens launched a
constitutional challenge against the deployment in the FRG of American (p. 97) medium-
range missiles with nuclear warheads in accordance with a NATO resolution. The applicants
alleged that the missiles violated the right to life and physical integrity under Article 2(2) of
the Basic Law, and further argued that the deployment infringed Article 25 since it violated
a general rule of international law prohibiting such weapons. The court refused to hear the
application for three reasons: (1) there was no data available by which the court could
ascertain the alleged risk to life and health and, in any case, the materialization of such a
risk was wholly dependent on the future political and military decisions of the USSR; (2)
any infringement of the Basic Law on which such a claim could be based could only be
actionable against the German state, with the direct threat here arising from the nuclear
potential of the USSR; and (3) it was the responsibility of the government to decide upon
the foreign and defence policy of the FRG, not the court.414
According to Currie, in refusing to hear such matters the court is doing nothing more than
concluding that the Basic Law commits a certain issue to the discretion or determination of
another branch of government.415 A similar solution was hinted at in Chemical Weapons,
linking the availability of judicial review to the particular character of national defence. The
court held that:
in order to comply with the requirements for the admissibility of constitutional

complaints based on an alleged violation of the duty of protection enshrined as a
basic right in Article 2(2) … the complainant must be able to prove conclusively that
the public authorities either totally failed to take precautionary measures or that
the regulations enacted and the measures actually taken were totally inappropriate
or wholly insufficient to achieve the aim of providing protection …416
In such cases, the court has not excluded judicial review entirely but imposed an
evidentiary hurdle commensurate with the gravity of the issues under consideration.
Formally, it remains the case that Germany has not yet developed a doctrine of non-
justiciability. In a case regarding Germany’s participation in the identification of potential
targets for NATO airstrikes, the Constitutional Court held that ‘[t]he preparation of military
target lists and the non-invocation of a veto right against the inclusion of an object on those
lists as a legitimate target are not political decisions, which would be beyond judicial
control.’417 The court also noted that, due to the constitutional significance of state liability
and the claimants’ lack of access to information, a shift in the burden of proof—requiring
the state to explain its conduct—may be permissible for effective judicial review.
Nevertheless, the provisional nature of the list and the discretion afforded in the conduct of
military operations led the court to conclude that Germany’s conduct was consistent with
applicable international humanitarian law rules.418
(p. 98) (iii) Italy
As with the French system, Italian doctrine provides that acts of government (teoria
dell’atto do governo) are non-justiciable, basing its position on the notion that the exercise
of government discretion is necessary in order to preserve certain constitutional or political
imperatives.419 Here, the point of reference is the Constitution, which reserves certain
matters for the executive and legislature, most notably the capacity of Parliament to declare
a state of war and vest the government with the necessary powers of prosecution.420 Such
acts, by reason of their inherently discretionary character but also due to separation of
powers considerations, are non-justiciable.
The leading decision is Marković, where the Corte di Cassazione ruled on the liability of the
Italian government in claims brought by Serbian civilians whose relatives were killed during
an aerial bombardment of Belgrade by NATO forces in 1999. Liability was premised on two
alternative bases: that Italy was jointly liable for the airstrike as a NATO member; or the
bombardment was carried out from bases located on Italian soil. In a concise judgment, the
court held that the acts in question were non-justiciable:
The selection of a method for conducting hostilities is amongst those acts which are
performed by the Government. All such acts are expressions of a political function
which, under the Constitution, is envisaged as emanating from a constitutional
organ. The nature of this function is that it is impossible to protect individual
interest from its effects on the basis that those acts falling within its scope are
incapable of precise definition … With regard to acts of this type, no court has the
power to review the manner in which the function is exercised.421
Thus, the Italian approach sits within the same tradition as that of France, the UK, and the
US.422
The Russian system for judicial review is similar to its German counterpart. Article 46(2) of
the Constitution provides that ‘[d]ecisions and actions (or inaction) of state bodies, bodies
of local self-government, public associations and officials may be appealed in a court of law.’
Courts tend to see any attempt to transgress this right as (p. 99) unconstitutional.423
Moreover, administrative complaints are generally not subject to the defence of sovereign
immunity.424 A wider jurisdiction is posited by Article 125 with respect to the Constitutional
Court;425 though its capacity to hear certain disputes is dependent on referral of the matter
by a relevant government body,426 it retains the general jurisdiction to hear complaints
regarding the violation of the constitutional rights and freedoms of citizens on petition.427
The landscape of judicial review and non-justiciability in Russia is complicated by the fact
that the current Constitutional Court is Russia’s second since the break-up of the Soviet
Union. The first was established in 1991, with its jurisdiction based in part on the 1978
Constitution of the Soviet Union combined with the 1991 Law on the Constitutional Court of
the Russian Soviet Federative Socialist Republic, which did not exclude the court from
involvement in political affairs.428 The result was a highly destructive confrontation
between the court and President Yeltsin in the context of the 1993 Russian constitutional
crisis. This ended with the introduction of the current 1993 Constitution and the 1994 Law
on the Constitutional Court, Article 3 of which states that the court ‘shall rule exclusively on
questions of law’. The court lost the right to examine cases ex proprio motu as well as its
competence over non-normative acts of the president and other executive officials and
agencies.429
Despite the imperative contained in Article 3 of the 1994 Law on the Constitutional Court,
the court has not refrained from addressing issues which would ordinarily be thought
political in character.430 For example in the Chechnya case,431 the court was asked by a
minority in the Russian Parliament pursuant to Article 125(2) of the Constitution to assess
the constitutionality of a decision by President Yeltsin to order troops to Chechnya.
Although it refused to consider ‘the political expediency of the [government’s] decisions or
the validity of the actions carried out on that basis’, the court nonetheless considered itself
competent to rule on the legality of the initial orders, which were upheld.432
It is to be remembered that Article 3 of the 1994 Law on the Constitutional Court is a
jurisdictional limitation applicable to that court alone; there is no evidence of a similar
doctrine developing at other levels of the Russian judicial hierarchy, though its theory and
practice remain relatively inchoate.
(p. 100) (v) The Netherlands
Judicial review in the Netherlands bears a passing similarity to the German position, but is
at the same time quite different owing first to the unusual position that treaty law holds
within the jurisdiction and, secondly, to the strictures of the Dutch Constitution. Article 120
of the Constitution provides that the ‘constitutionality of Acts of Parliament and treaties
shall not be reviewed by the courts’.433 This automatically places a jurisdictional limitation
—unique amongst liberal democracies—on judicial review that may only be resolved by the
fact that Dutch law does not consider treaties to be ‘constitutional’ in nature, opening the
possibility of assessing municipal statutes according to the yardstick of international
conventions signed and ratified by the Netherlands.434
Dutch law does not know of a political question doctrine, in the sense that those issues
intrinsically connected with the legislature are automatically removed from the competence
of the courts.435 Rather, it has in recent times begun to demonstrate—on a discretionary
basis—an extreme deference towards the exclusive competence of the legislature with
respect to political matters. This first arose in Association of Lawyers for Peace which again
considered a pre-emptive application by a community group seeking a declaration that the
deployment of nuclear weapons by the Netherlands would be illegal. Dismissing the
application, the court held that:
[T]he applications instituted in the present action relate to questions concerning the
policy of the State in the area of foreign policy and defence, which … will depend to
a large extent on political considerations … This means that the civil courts should
observe a large degree of restraint in assessing applications such as the one
instituted in the present case, which are designed to designate in advance as
unlawful … acts to implement political decisions in the area of foreign policy and
defence … It is not, after all, the function of the civil courts to make political
decisions of this nature.436
This doctrine of judicial restraint in matters of foreign policy and defence has been applied
repeatedly since,437 most notably in dismissing an application to have President Bush
arrested for war crimes on an official visit to the Netherlands,438 and in yet another pre-
emptive application to prevent the deployment of Dutch forces in any attempt to support
retributive measures by the US in the wake of the 9/11 terrorist attacks without the
authorization of force by the Security Council.439
(p. 101) In two cases regarding the legality of Dutchbat’s conduct—a Dutch contingent, part
of an international peacekeeping force in Srebrenica—the Supreme Court rejected the
government’s submission that judicial restraint should be exercised. The lack of a legal
basis requiring the courts to refrain from ruling on the issue was noted. While recognizing
the potential adverse effects on peace operations, the Supreme Court held that:
The exercise of judicial restraint … would mean that there would be virtually no
scope for the courts to assess the consequences of the conduct of a troop contingent
in the context of a peace mission, in this case the conduct of which Dutchbat and
hence the State are accused. Such far-reaching restraint is unacceptable.440
In Urgenda Foundation v The Netherlands, limited deference to governmental authorities

was further demonstrated. There, the national policy on the reduction of greenhouse gas
emissions was challenged on the basis that it inadequately protected human health and the
environment, in violation of domestic and international law. In the first instance it was held
that although the relevant treaty provisions had no direct effect, they limited the
government’s discretion and informed the standard of care it must exercise. It was further
accepted that the claim concerned legal protection and was thus justiciable; ‘the possibility
—and in this case even certainty—that the issue is also and mainly the subject of political
decision-making is no reason for curbing the judge in his task and authority to settle
disputes.’ The court disregarded the potential interference its decision could have on the
Dutch negotiating position. Ultimately, a breach of the state’s duty of care was found and
the Netherlands was ordered to further limit the volume of greenhouse gas emissions.441
On 9 October 2018 the Hague Court of Appeal upheld the decision of the Hague District
Court.442
5. Conclusion
On the whole question of the relation between national and international law, theoretical
constructions have done much to obscure realities. If one had to choose between the
theories considered earlier in this chapter, then the view of Fitzmaurice might be preferred
as coming closer to the truth. Each system is supreme in its own field; neither has
hegemony over the other. And yet any generalities offered can only provide a background to
the complex relations between the national and (p. 102) international systems. Three
factors operate. The first is organizational: to what extent are the organs of states ready to
apply rules of international law internally and externally?443 This seems to suggest a
pluralist vision in which it falls to each system to regulate its own relationship with other
legal systems. The second factor is the difficulty of proving the existence of particular rules
of international law. In the case of difficulty, national courts usually rely on advice from the
executive or existing precedents, and the result may not accord with an objective
appreciation of the law. Thirdly, courts, national and international, will often be concerned
with the question of which is the appropriate system to apply to particular issues arising.
The question of appropriateness emphasizes the distinction between organization, that is,
the character of the jurisdiction as ‘national’ or ‘international’, and the character of the
rules of both systems as flexible instruments for dealing with disputes and regulating non-
contentious matters. An international court may find it necessary to apply rules of national
law, while bodies, such as the United States Foreign Claims Settlement Commission, which
are national in terms of organization and competence may find it appropriate, and be
authorized, to apply rules of international law on a large scale. When a national court
applies a rule of international law because it is appropriate, it is pointless to ask if the rule
applied has been ‘transformed’, except insofar as ‘transformation’ describes a process
required by a particular national system before certain organs are permitted, or are willing,
to apply rules of international law.
Footnotes:
1
Terminology is not consistent; the terms ‘national’, ‘municipal’, ‘domestic’, and ‘internal’
are all used to refer to the legal order of or within the state, although the terms have
slightly different connotations. Here the term used is ‘national’, but it includes local or
regional as well as central laws and institutions.
2
Triepel (1923) 1 Hague Recueil 77; Kelsen, Principles of International Law (2nd edn,
1966) 290, 551; Lauterpacht, 1 International Law: Collected Papers (1970) 151; Santulli, Le
statut international de l’ordre juridique étatique (2001); Nijman & Nollkaemper (eds), New
Perspectives on the Divide Between National and International Law (2007); Crawford,
Chance, Order, Change (2014) 160–82; Björgvinsson, The Intersection of International and
Domestic Law (2015) ch 2.
3
Gaja in Nijman & Nollkaemper (2007) 52.
4
Lauterpacht, International Law and Human Rights (1950) 70.
5
1 Oppenheim (8th edn, ed Lauterpacht, 1955) 38: ‘… it is only by reference to a higher
legal rule in relation to which they are all equal, that the equality and independence of a
number of sovereign States can be conceived. Failing that superior legal order, the science
of law would be confronted with the spectacle of some sixty sovereign States, each claiming
to be the absolutely highest and underived authority.’ This passage does not appear in the
ninth edn.
6
Kelsen, General Theory of Law and State (1945) 363; Kelsen (2nd edn, 1966) 553. For
views related to but not identical with those of Kelsen: Verdross (1927) 16 Hague Recueil
247, 287; Kunz (1924) 10 GST 115; Starke (1936) 17 BY 66. On Kelsen: von Bernstorff, The
Public International Law Theory of Hans Kelsen (2010); Kammerhofer, Uncertainty in
International Law (2011); Kammerhofer in Orakhelashvili (ed), Research Handbook on the
History and Theory of International Law (2011) 143; von Bernstorff in Orford & Hoffmann
(eds), The Oxford Handbook of the Theory of International Law (2016) 192.
7
Kelsen (2nd edn, 1966) 564. This was Kelsen’s second attempt at the basic norm; the first
was pacta sunt servanda (Kelsen, Das Problem der Souveränität und die Theorie des
Völkerrechts (2nd edn, 1928) 217), which was later subsumed within the Grundnorm:
Kelsen, Reine Rechtslehre (1934) 130. Further: Koskenniemi, The Gentle Civilizer of
Nations (2001) ch 3; Koskenniemi, From Apology to Utopia (2nd edn, 2005) 226–40.
8
Kelsen (1945) 367; Kelsen (2nd edn, 1966) 562.
9
Kelsen (1945) 363; Kelsen (2nd edn, 1966) 553. For criticism of Kelsen’s theory of the
unity of all law: Hart, Essays in Jurisprudence and Philosophy (1983) 309.
10
Kelsen (2nd edn, 1966) 559.
11
Ibid, 564.
12
Ibid, 580.
13
Ibid, 587–8.
14
Generally: Nollkaemper in Romano, Alter, & Shany (eds), The Oxford Handbook of
International Adjudication (2014) 523.
15
Fitzmaurice (1957) 92 Hague Recueil 1, 68.
16
Ibid, 79–80. Anzilotti, 1 Cours de droit international (1929) 57, puts forward this view,
but is often classified as a dualist.
17
For an empirical demonstration of the inadequacy of a binary (monist/dualist)
classification: Verdier & Versteeg (2015) 109 AJIL 514.
18
To talk simply of dualism is to imply that national legal systems all have the same
features. Why should this be? The US is not the Federal Republic of Germany; their relation
is international not constitutional, but international law holds them apart; it does not unify
them: e.g. Cohen in Besson & Tasioulas (eds), The Philosophy of International Law (2010)
261. For EU law, which unifies to a degree: Slaughter & Burke-White in Nijman &
Nollkaemper (2007) 110.
19
Fitzmaurice (1957) 92 Hague Recueil 1, 85; Lauterpacht, Development (1958) 262, 314,
332; Dupuy in Crawford, Pellet, & Olleson (eds), The Law of International Responsibility
(2010) 173.
20
VCLT, 22 May 1969, 1155 UNTS 331, Art 27, referring to justification for failure to
perform a treaty. Cf VCLT, Art 46, permitting a state to argue the invalidation of consent by
reason of the violation of its internal law where the violation was ‘manifest and concerned a
rule of its internal law of fundamental importance’. Further: chapter 16.
21
ILC Ybk 2001/II(2), 36. Also: Draft Declaration on Rights and Duties of States, GA Res
375(IV), 6 December 1949, Art 13.
22
Shufeldt (1930) 2 RIAA 1079, 1098; Norwegian Shipowners (1922) 1 RIAA 307, 331.
23
SS Wimbledon (1923) PCIJ Ser A No 1, 29; Jurisdiction of the Courts of Danzig (1928)
PCIJ Ser B No 15, 26–7; Free Zones of Upper Savoy and the District of Gex (1930) PCIJ Ser
A No 24, 12.
24
The leading cases are Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 132;
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, ICJ Reports 1988 p 12, 34; Elettronica Sicula
SpA (ELSI) (US v Italy), ICJ Reports 1989 p 15, 51, 74; Avena (Mexico v US), ICJ Reports
2004 p 12, 65; Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ Reports 2012 p
422, 460.
25
Moore, 1 Int Arb (1898) 653.
26
Free Zones of Upper Savoy and the District of Gex (1932) PCIJ Ser A/B No 46, 167. Also:
Greco-Bulgarian Communities (1930) PCIJ Ser B No 17, 32.
27
Treatment of Polish Nationals in the Danzig Territory (1932) PCIJ Ser A/B No 44, 24.
Also: Georges Pinson (France) v United Mexican States (1928) 5 RIAA 327.
28
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 20. The principle
applies to both unitary and federal states.
29
McNair, Treaties (1961) 100. Cf Fitzmaurice (1957) 92 Hague Recueil 1, 89.
30
(1926) PCIJ Ser A No 7, 19.
31
India—Patents, WTO Doc WT/DS50/AB/R, 15 December 1997, para 65; Belgium v
Senegal, ICJ Reports 2012 p 422, 451–2.
32
Jenks, The Prospects of International Adjudication (1964) 552, 548.
33
Brazilian Loans (1929) PCIJ Ser A No 21, 124–5; Nottebohm (Liechtenstein v
Guatemala), Second Phase, ICJ Reports 1955 p 4, 35–6 (Judge Read, diss), 51 (Judge
Guggenheim, diss); United States—Carbon Steel, WTO Doc WT/DS213/AB/R, 28 November
2002, para 157.
34
Brazilian Loans (1929) PCIJ Ser A No 21, 124–5; Serbian Loans (1929) PCIJ Ser A No 20,
46: ‘It is French legislation, as applied in France, which really constitutes French law.’
35
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), ICJ
Reports 2010 p 639, 665. Also: Panevezys-Saldutiskis Railway (1939) PCIJ Ser A/B No 76,
19.
36
Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 181 (Judge McNair, diss); Certain
Questions of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Reports 2008 p
177, 230. Also: Helnan International Hotels v Arab Republic of Egypt, ICSID Case ARB/
05/19, 3 July 2008, paras 106, 163; RSM Production Corp v Grenada, ICSID Case ARB/10/6,
10 December 2010, paras 7.1.11–7.1.14; Marion Unglaube v Republic of Costa Rica, ICSID
Case ARB/08/1, 16 May 2012, paras 231, 255.
37
Diallo, ICJ Reports 2010 p 639, 665. Also: Fraport AG Frankfurt Airport Services
Worldwide v Philippines, ICSID Case ARB/03/25, 23 December 2010, paras 236, 242;
Marion Unglaube v Republic of Costa Rica, ICSID Case ARB/08/1, 16 May 2012. At para 231
the Tribunal finds that there is limited evidence for the Supreme Court’s decision about a
buffer zone. At para 255 the Tribunal nevertheless applies the Guidelines emanating from
that decision.
38
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B No 49, 294,
336; International Responsibility for the Promulgation of Laws in Violation of the
Convention (1994) 116 ILR 320, 332.
39
The PCIJ in Upper Silesia was not unequivocal in its remark that the Court was ‘not
called upon to interpret the Polish law as such’: (1926) PCIJ Ser A, No 7, 19. Also:
Nottebohm, Second Phase, ICJ Reports 1955 p 4, 36 (Judge Read, diss), 52 (Judge
Guggenheim, diss); Guardianship of Infants (Netherlands v Sweden), ICJ Reports 1958 p 55,
108 (Judge Moreno Quintana).
40
Guardianship of Infants, ICJ Reports 1958 p 55, 91 (Judge Lauterpacht); Southern
Pacific Properties (Middle East) Ltd v Arab Republic of Egypt (1988) 3 ICSID Reports 131,
141–2; Zhinvali v Georgia (2003) 10 ICSID Reports 3, 80; MTD Equity Sdn Bhd and MTD
Chile SA v Chile (2004) 12 ICSID Reports 3, 40; Inceysa Vallisoletana v Republic of El
Salvador, ICSID Case ARB/03/26, 2 August 2006, paras 260–4; Enron Corp v Argentine
Republic, ICSID Case ARB/01/3, 22 May 2007, para 206; Marion Unglaube v Republic of
Costa Rica, 16 May 2012, para 190.
41
Lighthouses in Crete and Samos (1934) PCIJ Ser A/B No 62, 19.
42
Serbian Loans (1929) PCIJ Ser A No 20; Brazilian Loans (1929) PCIJ Ser A No 21.
43
Marek (1962) 66 RGDIP 260; Stoll, L’application et l’interprétation du droit interne par
les juridictions internationales (1962); Jenks (1964) 547; Santulli (2001); Kjos, Applicable
Law in Investor-State Arbitration (2013) 240–58.
44
Upper Silesia (1926) PCIJ Ser A No 7.
45
Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 176 (Judge McNair, diss).
46
Nottebohm, Second Phase, ICJ Reports 1955 p 4.
47
Guardianship of Infants, ICJ Reports 1958 p 55.
48
Barcelona Traction, Light and Power Co Ltd (Belgium v Spain), Second Phase, ICJ
Reports 1970 p 3.
49
Diallo, ICJ Reports 2010 p 639.
50
E.g. the treaties considered in: Tokios Tokelés v Ukraine (2004) 11 ICSID Reports 313;
National Grid plc v Argentine Republic, UNCITRAL, Award, 3 November 2008.
51
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 19–20.
52
Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15; Statute of the Memel
Territory (1932) PCIJ Ser A/B No 49.
53
German Settlers in Poland (1923) PCIJ Ser B No 6; Minority Schools in Albania (1935)
PCIJ Ser A/B No 64, 4. The Permanent Court did not regard formal equality as the only
criterion of equal treatment. Further: Fitzmaurice (1959) 35 BY 183, 191.
54
Serbian Loans (1929) PCIJ Ser A No 20. Also: Brazilian Loans (1929) PCIJ Ser A No 21;
Danzig Legislative Decrees (1935) PCIJ Ser A/B No 65; Illinois Central Railroad Co (USA) v
United Mexican States (1926) 4 RIAA 21; Norwegian Shipowners (1922) 1 RIAA 307, 330.
55
Serbian Loans (1929) PCIJ Ser A No 20, 19.
56
Generally: Shelton (ed), International Law and Domestic Legal Systems (2011).
57
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529, 569 (Stephenson LJ).
58
Fentiman, International Commercial Litigation (2nd edn, 2015) ch 20.
59
E.g. Barbie, 20 December 1985, JCP 1986 II 20655 (1988), 100 ILR 330. Also in relation
to deference to the national executive in treaty interpretation: Aust, Rodiles, & Staubach
(2014) 27 LJIL 75, 86–8. Cf Fulwood v Germany, 734 F3d 72 (1st Cir, 2013). Further: Arato
in Aust & Nolte (eds), The Interpretation of International Law by Domestic Courts (2016)
198.
60
R v Keyn (1876) 2 Ex D 63; Re Piracy Jure Gentium [1934] AC 586; State (Duggan) v
Tapley [1952] IR 62; Lauritzen v Government of Chile (1956) 23 ILR 708; R (Freedom and
Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC
2010 (Admin).
61
E.g. R (Al-Jedda) (FC) v Secretary of State for Defence [2008] 1 AC 332; Mohammed
(Serdar) v Secretary of State for Defence [2016] 2 WLR 247.
62
Jones v Ministry of Interior (Kingdom of Saudi Arabia) [2006] UKHL 26, [12] (Lord
Bingham); La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012]
UKPC 27, [15]–[16], [18] (Lord Mance); R (Freedom and Justice Party) v Secretary of State
for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin), [89]–[103] (Lloyd Jones
LJ); Kontic v Ministry of Defence [2016] EWHC 2034 (QB), [108]–[116] (Irwin J).
63
Shelton in Shelton (2011) 1, 6–7.
64
Ibid, 7.
65
Thus, in monist systems the parliament will usually play a much more active role in the
debate prior to adoption of the treaty: e.g. Constitution of the Netherlands, Arts 91, 94;
Constitution of the Russian Federation, Art 15.3. Further: Shelton in Shelton (2011) 1, 6;
Verdier & Versteeg (2015) 109 AJIL 514, 518–19.
66
Shelton in Shelton (2011) 1, 6–7. E.g. Minister for Immigration and Ethnic Affairs v Teoh
(1995) 104 ILR 460, 471 (Mason CJ and Deane J).
67
E.g. Lord Advocate’s Reference (No 1 of 2000) 2000 SLT 507, where a Scottish court
had to determine the legality of the UK’s Trident nuclear missile programme, despite the
fact that the International Court had earlier avoided answering the question whether the
mere holding of nuclear weapons was in breach of international law: Legality of the Threat
or Use of Nuclear Weapons, ICJ Reports 1996 p 226. Further: Neff (2002) 51 ICLQ 171. On
the contribution of domestic courts to various areas of international law, see (2013) 26 LJIL
531–665.
68
E.g. Nulyarimma v Thompson (1999) 96 FCR 153; Rasul v Bush, 542 US 466 (2004);
Ferrini v Federal Republic of Germany (2004) 128 ILR 658; R v Jones (Margaret) [2007] 1
AC 136; Simoncioni v Germany, Italian Constitutional Court, 22 October 2014, Judgment No
238 (noted (2015) 109 AJIL 400). On state immunity: chapter 22.
69
28 USC §1350 (initially enacted in 1789). Also: Torture Victims Protection Act 1991, 106
Stat 73. Further: chapter 21.
70
Filartiga v Pena-Irala, 630 F2d 876 (2d Cir, 1980); Sosa v Alvarez-Machain, 542 US 692
(2004); Kiobel v Royal Dutch Petroleum, 133 S Ct 1659 (2013). Further: Roth (2004) 98 AJIL
798; Stewart & Wuerth (2013) 107 AJIL 601.
71
Paust (1988) 82 AJIL 760; Vásquez (1995) 89 AJIL 685; Crootof (2011) 120 Yale LJ 1784;
Iwasawa (2016) 378 Hague Recueil 9, 54–90; cf Verdier & Versteeg (2015) 109 AJIL 514,
523–5. Generally: Kaiser, ‘Treaties, Direct Applicability’ (2013) MPEPIL.
72
E.g. Arantzazu Mendi [1939] AC 256; Gur Corp v Trust Bank of Africa Ltd [1987] QB
599; GITSI [1990] Rec Lebon 171, 111 ILR 499; Agyepong [1994] Rec Lebon 523, 111 ILR
531; British Arab Commercial Bank plc v National Transitional Council of the State of Libya
(2011) 147 ILR 667; R (Sultan of Pahang) v Secretary of State for the Home Department
(2011) 152 ILR 543; Khurts Bat v Investigating Judge of the German Federal Court (2011)
147 ILR 633; Al-Juffali v Estrada [2016] EWCA Civ 176; Al Attiya v Al Thani [2016] EWHC
212 (QB); Bouhadi v Breish [2016] EWHC 602 (Comm); cf R (Freedom and Justice Party) v
Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin),
[174]. Also: R v Gul [2012] EWCA Crim 280, [22] (appealed on other grounds: [2013] UKSC
64). Further: McLachlan, Foreign Relations Law (2014) 240–8.
73
ECHR, 4 November 1950, 213 UNTS 222, Art 6.
74
Beaumartin v France (1994) 107 ILR 50, 56. Cf Bjorge in Aust & Nolte (eds), The
Interpretation of International Law by Domestic Courts (2016) 49, 55–6.
75
Further: Difference Relating to Immunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, ICJ Reports 1999 p 62, 87–8.
76
Shelton in Shelton (2011) 1, 20–2.
77
E.g. in Australia the adoption of legislation based on international human rights
standards by the Australian Capital Territory and Victoria, where no comparable bill of
rights exists on a constitutional or federal level: Human Rights Act 2004 (ACT); Charter of
Human Rights and Responsibilities Act 2006 (Vic); Momcilovic v R [2011] HCA 34.
78
Reinisch (2004) 3 LPICT 37; Shany, Regulating Jurisdictional Relations Between
National and International Courts (2007); Hobér (2014) 366 Hague Recueil 99, 294–324.
Also: Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration
(2013) ch 6; Schaffstein, The Doctrine of Res Judicata before International Commercial
Arbitral Tribunals (2016).
79
Cheng, General Principles of International Law (1953) 336; Reinisch (2004) 3 LPICT 37,
44; Dodge, ‘Res Judicata’ (2006) MPEPIL; Shany (2007) 159; Schreuer et al, The ICSID
Convention (2nd edn, 2009) 609; Hobér (2014) 366 Hague Recueil 99, 294; Lock, The
European Court of Justice and International Courts (2015) 58. Also: Interpretation of
Judgments No 7 and 8 (Factory at Chorzów) (1927) PCIJ Ser A No 13, 27 (Judge Anzilotti,
diss); Trail Smelter (1938) 3 RIAA 1905, 1950; Waste Management Inc v United Mexican
States (2002) 6 ICSID Reports 549, 559; Effect of Awards of Compensation made by the UN
Administrative Tribunal, ICJ Reports 1954 p 47, 53; Amco Asia Corp v Indonesia (1988) 1
ICSID Reports 543, 549; Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ
Reports 2007 p 43, 90–1; Cases A3/A8/A9/A14/B61 (2009) 38 Iran–US CTR 197, 241;
Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2011 p 420, 443;
ConocoPhillips v Venezuela, 10 March 2014, para 21. Some scholars go so far as to elevate
it to the status of custom: Reinisch (2004) 3 LPICT 37, 44; Shany (2007) 159–60.
80
Upper Silesia (1925) PCIJ Ser A No 6, 20; Amco Asia Corp v Indonesia (1984) 89 ILR
366, 459; Helnan International Hotels v Arab Republic of Egypt, 3 July 2008, paras 126–7.
81
Cf Georges Pinson (France) v United Mexican States (1928) 5 RIAA 327, 348 (the
tribunal held that it would give great weight to factual findings made by the national claims
commission). Under the North American Free Trade Agreement (NAFTA), 17 December
1992, 1994 CTS 2, Art 1131(2), decisions of the Free Trade Commission (an
intergovernmental executive body) are binding on tribunals: e.g. Mondev International Ltd
v United States of America (2002) 6 ICSID Reports 181, 223–4; Methanex v US (2005) 16
ICSID Reports 32, 193.
82
ECHR, Art 26.
83
Amco Asia Corp v Republic of Indonesia (1984) 89 ILR 366, 459; Helnan International
Hotels v Arab Republic of Egypt, 3 July 2008, paras 123–5.
84
E.g. Occidental Exploration and Production Co v Republic of Ecuador (2004) 138 ILR 35,
48–53; Toto Costruzioni v Republic of Lebanon, 11 September 2009, paras 211–12; cf
Pantechniki SA v Republic of Albania, 30 July 2009, paras 61–4.
85
Shany (2007) 161. Further: Iwasawa (2016) 213–42. Also: Diggs v Richardson, 555 F2d
848 (DC Cir, 1976) (Security Council resolution non-self-executing); Bradley v
Commonwealth of Australia (1973) 128 CLR 557; Medellin v Dretke, 544 US 660 (2005).
86
E.g. Medellin v Texas, 552 US 491 (2008).
87
Socobel v Greek State (1951) 18 ILR 3; Committee of United States Citizens Living in
Nicaragua v Reagan, 859 F2d 929 (DC Cir, 1988); Breard v Greene, 523 US 371 (1998), and
generally Schulte, Compliance with Decisions of the International Court of Justice (2004)
77.
88
Messina v Petrococchino (1872) LR 4 PC 144; Dallal v Bank Mellat [1986] QB 441, 457
(Hobhouse J). For comment: Fox (1988) 37 ICLQ 1, 24; Crawford (1986) 57 BY 410.
89
E.g. Arbitration Act 1996 (UK) ss58, 66; 9 USC §13; International Arbitration Act 1974
(Cth), ss16, 33; UNCITRAL Model Law on International Commercial Arbitration 2006, Art
17H(1). Also: Hobér (2014) 366 Hague Recueil 99, 130, 134–5, 138–44.
90
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June
1958, 330 UNTS 38, Art III.
91
ICSID Convention, Arts 53, 54.
92
The same may be said of its correlative in the criminal law, ne bis in idem: van den
Wyngaert & Stessens (1999) 48 ICLQ 779, 781–90.
93
E.g. United States v Lanza, 260 US 227 (1922); United States v Wheeler, 435 US 313
(1978). Further: Shany (2007) 160.
94
Cf RSM Production Corp v Grenada, 10 December 2010, paras 7.1.2, 7.1.5. On estoppel:
chapter 18. Also: ILA committee reports on lis pendens and res judicata in international
commercial arbitration: (2009) 25 Arb Int 35 (Interim Report); (2009) 25 Arb Int 67 (Final
Report); (2009) 25 Arb Int 83 (Recommendations).
95
Brownlie, Use of Force (1963) 185. Also: N v B (1957) 24 ILR 941; B v T (1957) 24 ILR
962.
96
Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p 136.
97
(2005) 129 ILR 241, 285, 298. Also: Iwasawa (2016) 236–42.
98
Westlake (1906) 22 LQR 14; Lauterpacht (1939) 25 GST 51; 1 Lauterpacht (1970) 154,
218; Fatima, Using International Law in Domestic Courts (2005) 403; McLachlan (2014) ch
3.
99
McNair, 3 Opinions, Appendix II, and for a synopsis Crawford in Zimmermann & Beatson
(eds), Jurists Uprooted (2004) 681.
100
Barbuit (1737) Cases t Talbot 281; Triquet v Bath (1764) 3 Burr 1478, 1481; Heathfield
v Chilton (1767) 4 Burr 2015, 2016. Later: De Wütz v Hendricks (1824) 2 Bing 314, 315;
Emperor of Austria v Day (1861) 30 LJ Ch 690, 702 (reversed on appeal on another point); R
v Keyn (The Franconia) (1876) 2 Ex D 63. Further: O’Keefe (2008) 79 BY 7, 12–23.
101
For an overview of the legal history: Baker, An Introduction to English Legal History
(4th edn, 2002) 117–54.
102
E.g. Blad v Bamfield (1674) 36 ER 992 (Ch); Duke of Brunswick v King of Hanover
(1848) 9 ER 993.
103
The term ‘English law’ has been used here for the sake of concision, but the position in
England broadly reflects that in other Commonwealth countries: McNair, Treaties (1961)
81; Fatima (2005); Sales & Clement (2008) 124 LQR 388, 394–413; Neff in Shelton (2011)
620, 621–6; Aust, Modern Treaty Law and Practice (3rd edn, 2013) 159.
104
Sales & Clement (2008) 124 LQR 388, 399.
105
‘The bedrock of the British constitution’: R (Jackson) v Attorney General [2006] 1 AC
262, 274 (Lord Bingham).
106
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418,
500. Further: The Parlement Belge [1880] 4 PD 129, 150; Post Office v Estuary Radio Ltd
(1968) 2 QB 740, 753. But see Bjorge [2017] Public Law 586.
107
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418,
499–500 (Lord Oliver). Also: Rustomjee v R [1876] 2 QB 69, 74 (Lord Coleridge); The
Parlement Belge (1879) 4 PD 129, 150, 154–5 (Sir Robert Phillimore); Walker v Baird [1892]
AC 491, 496–7 (Lord Herschell); Mortensen v Peters (1905–6) F (JC) 93, 100–1 (Scottish
High Court of Justiciary); Hoani Te Heuheu Tukino v Aotea District Maori Land Board
[1941] AC 308 (PC), 324–5 (Viscount Simon LC); Pan-American World Airways Inc v
Department of Trade [1976] 1 Lloyd’s Rep 257, 260 (Lord Denning MR), 261–2 (Scarman
LJ); JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch 72, 164
(Kerr LJ); Re M and H (Minors) (Local Authority: Parental Rights) [1990] 1 AC 686, 721
(Lord Brandon); R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 340
(Lord Bingham MR); R v Lyons [2003] 1 AC 976, 987 (Lord Bingham), 995 (Lord Hoffmann);
Moohan v Lord Advocate [2015] AC 901, 923 (Lord Hodge); R (SG) v Secretary of State for
Work and Pensions [2015] 1 WLR 1449, 1477 (Lord Reed), 1518 (Lord Kerr); Al-Saadoon v
Secretary of State for Defence [2016] EWCA Civ 811, [194] (Lloyd Jones LJ); R (Miller) v
Secretary of State for Exiting the European Union [2017] UKSC 5, [50]–[58].
108
[2000] 2 AC 1 (PC), 23 (Lord Millett); ibid, 31–3 (Lords Hoffmann & Goff, diss).
109
The Constitutional Reform and Governance Act 2010, ss20–22, provides for prior
parliamentary approval of treaty ratification in most cases. But it does not change the no
direct effect rule.
110
Fatima (2005) 283–8; Sands & Clement (2008) 124 LQR 388, 397–8.
111
R v Lyons [2003] 1 AC 976, 987 (Lord Bingham), 995 (Lord Hoffmann). Also: R v
Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 747 (Lord
Bridge); Re McKerr [2004] 2 All ER 409.
112
Maclaine, Watson & Co Ltd v Department of Trade and Industry [1990] 2 AC 418, 500
(Lord Oliver). Also: British Airways v Laker Airways [1985] AC 58. The most obvious
example of this is the Human Rights Act 1998 (UK), which gives qualified domestic effect to
the ECHR.
113
Case C-87/75 Bresciani [1976] ECR 129; Case C-104/81 Kupferberg (1982) 93 ILR 76.
Also: European Communities Act 1972 (UK). On the constitutional modalities of British
withdrawal, R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
See now European Union (Withdrawal) Act 2018 (UK).
114
IRC v Collco Dealings Ltd [1962] AC 1; Woodend (KV Ceylon) Rubber and Tea Co v IRC
[1971] AC 321.
115
E.g. Diplomatic Relations Act 1964 (UK), giving direct effect to certain provisions of the
VCDR, 18 April 1961, 500 UNTS 95.
116
E.g. Re Westinghouse [1978] AC 547 (regarding the Evidence (Proceedings in other
Jurisdictions) Act 1975, implementing the unmentioned Hague Convention on the Taking of
Evidence abroad in Civil or Commercial Matters, 18 March 1970, 847 UNTS 241).
117
For a case of an unimplemented treaty giving rise to domestic rights and obligations:
Republic of Ecuador v Occidental Exploration & Production [2007] EWCA Civ 656 (BIT
arbitration). For BIT arbitration: chapters 28, 32.
118
Sinclair (1963) 12 ICLQ 508; Mann, Foreign Affairs in English Courts (1986) 97; Fatima
(2005) 65–186; Gardiner (1995) 44 ICLQ 620; Neff in Shelton (2011) 620; Gardiner, Treaty
Interpretation (2nd edn, 2015) 144–9.
119
On the primacy of the incorporating statute: Rey v Government of Switzerland [1999] 1
AC 54 (PC), 63 (Lord Steyn); R v Secretary of State for the Environment, Transport and the
Regions, ex p International Air Transport Association [2000] 1 Lloyd’s Rep 242, 244 (Jowitt
J); R (Al-Fawwaz) v Governor of Brixton Prison [2001] 1 AC 556, 606–7 (Lord Rodger); R (Al-
Skeini) v Secretary of State for Defence [2004] EWHC 2911 (Admin), [301] (Rix LJ).
120
Though the courts will, as a general rule, follow them: Neff in Shelton (2011) 620, 623.
Further: R v Lyons [2003] 1 AC 976, 992. Also: Manchester City Council v Pinnock [2011] 2
AC 104, 125 (Lord Neuberger).
121
Absent a direction as to interpretation in the enacting statute itself: e.g. the Carriage
by Air Act 1961, s4A. Cf Neff in Shelton (2011) 620, 623.
122
22 May 1969, 1155 UNTS 331, Arts 31–2. Further: chapter 16.
123
E.g. Fothergill v Monarch Airlines Ltd [1981] AC 251, 282 (Lord Diplock); Republic of
Ecuador v Occidental Exploration and Production [2007] EWCA Civ 656, [26]; Czech
Republic v European Media Ventures SA [2007] EWHC 2851 (Comm), [51]; R v Asfaw
[2008] 1 AC 1061, 1114–15 (Lord Mance); EN (Serbia) v Secretary of State for the Home
Department [2010] QB 633, 653 (Stanley Burnton LJ); R (ST) v Secretary of State for the
Home Department [2012] 2 AC 135, 150–1 ([30]–[31]) (Lord Hope); Assange v Swedish
Prosecution Authority [2012] 2 AC 471, 508 ([67]) (Lord Phillips), 517–18 ([106]–[107])
(Lord Kerr), 524 ([130]) (Lord Dyson); R (Adams) v Secretary of State for Justice [2012] 1
AC 48, 69 (Lord Phillips); Ben Nevis (Holdings) Ltd v Commissioners for HM Revenue &
Customs [2013] EWCA Civ 578, [17] (Lloyd Jones LJ); Al-Saadoon v Secretary of State for
Defence [2016] EWCA Civ 811, [149] (Lloyd Jones LJ).
124
R v Immigration Appeal Tribunal, ex p Shah [1999] 2 AC 629, 657 (Lord Hoffmann)
(‘[a]s a general rule it is desirable that international treaties should be interpreted by the
courts of all states parties uniformly’). Also: R v Asfaw [2008] 1 AC 1061, 1095 (Lord Hope).
125
Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771 (Lord Diplock); R v
Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 748 (Lord
Bridge); A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, 255 (Lord
Bingham); R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, 192 (Lord
Rodger); EN (Serbia) v Secretary of State for the Home Department [2010] QB 633, 663
(Stanley Burnton LJ); Assange v Swedish Prosecution Authority [2012] 2 AC 471, 522 (Lord
Dyson); Re McCaughey’s Application for Judicial Review [2012] 1 AC 725, 748–50 (Lord
Phillips); R (Adams) v Secretary of State for Justice [2012] 1 AC 48, 69 (Lord Phillips). Cf R
v Gul [2014] AC 1260, 1286–7 (Lords Neuberger and Judge).
126
Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143.
127
Fatima (2005) 296–316.
128
Boyce v R [2005] 1 AC 400, 415–16 (Lord Hoffmann).
129
Salomon v Commissioners of Custom and Excise [1967] 2 QB 116, 144 (Diplock LJ); R v
Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 747–8 (Lord
Bridge).
130
Mirza v Secretary of State for the Home Department [1996] Imm AR 314 (CA), 318
(Nourse LJ).
131
R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 760 (Lord
Ackner); Attorney-General v Associated Newspapers [1994] 2 AC 238, 261–2 (Lord Lowry);
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 444 (Lord Browne-Wilkinson); R v Lyons
[2003] 1 AC 976, 987 (Lord Bingham); Al-Saadoon v Secretary of State for Defence [2015] 3
WLR 503, 578 (Leggatt J); R (SG) v Secretary of State for Work and Pensions [2015] 1 WLR
1449, 1490 (Lord Hughes), 1519 (Lord Kerr).
132
R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 747–8; cf
ibid, 760 (Lord Ackner).
133
R v Lyons [2003] 1 AC 976, 992 (Lord Hoffmann). Also: Attorney-General v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 109, 283 (Lord Goff); Al-Saadoon v Secretary of State
for Defence [2015] 3 WLR 503, 578 (Leggatt J); R (SG) v Secretary of State for Work and
Pensions [2015] 1 WLR 1449, 1490 (Lord Hughes), 1520 (Lord Kerr).
134
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [27] (Lord
Bingham); Derbyshire County Council v Times Newspapers [1992] QB 770, 812 (Balcombe
LJ).
135
Malone v Metropolitan Police Commissioner (No 2) [1979] 1 Ch 344, 379 (Megarry V-
C).
136
Gleaves v Deakin [1980] AC 477.
137
Attorney-General v BBC [1981] AC 303.
138
Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC
180.
139
[1984] AC 580, 597 (Lord Diplock). Also: Rahmatullah v Ministry of Defence [2014]
EWHC 3846 (QB), [67]–[81] (Leggatt J).
140
O’Keefe (2008) 79 BY 7; Sales & Clement (2008) 123 LQR 388, 413–20; Neff in Shelton
(2011) 620, 626–30. Also: Bingham, The Rule of Law (2010) ch 10.
141
The antagonist of incorporation is the doctrine of ‘transformation’, under which custom
will only become part of the law of England once codified in statute or in a prior
authoritative judicial decision—a doctrine of stasis so far as the common law is concerned.
English courts have subscribed to an incorporationist approach since the eighteenth
century: O’Keefe (2008) 79 BY 7, 9–10; Lauterpacht (1939) 25 GST 51, 65, 75–6, 84, 86;
Holdsworth, Essays in Law and History (1945) 266.
142
[1977] QB 529, 554; reiterated in R (Campaign for Nuclear Disarmament) v Prime
Minister of the UK (2002) 126 ILR 727, 738; and as a general principle underlying R
(European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1.
Further: Neff in Shelton (2011) 620, 627.
143
I Congreso del Partido [1983] AC 244, 261–2. Also: R v Jones (Margaret) [2007] 1 AC
136, 155 (Lord Bingham).
144
Brierly (1935) 51 LQR 24, 31.
145
[2007] 1 AC 136, 155 (citations omitted). Also: Al-Saadoon v Secretary of State for
Defence [2015] 3 WLR 503, 579 (Leggatt J); R (Freedom and Justice Party) v Secretary of
State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin), [166] (Lloyd
Jones LJ).
146
R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth
Affairs [2016] EWHC 2010 (Admin), [166].
147
E.g. R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009]
EWHC 1910, [40]. Also: O’Keefe (2008) 79 BY 7, 60.
148
R v Jones (Margaret) [2007] 1 AC 136, 160–3 (Lord Bingham); 170–1 (Lord Hoffmann);
179 (Lord Mance).
149
O’Keefe (2008) 79 BY 7, 63–6.
150
R v Secretary of State for the Home Department, ex p Thakrar [1974] QB 684, 702
(Lord Denning MR), 708–9 (Orr LJ); JH Rayner (Mincing Lane) Ltd v Department of Trade
and Industry [1989] Ch 72, 184–5 (Kerr LJ), cf 219–20 (Nourse LJ). Also: West Rand Central
Gold Mining Co v R [1905] 2 KB 391, 409–12 (Lord Alverstone CJ).
151
O’Keefe (2008) 79 BY 7, 64.
152
R (Al-Saadoon) v Secretary of State of Defence [2010] QB 486, 517 (Laws LJ), noted by
O’Keefe (2009) 80 BY 451, 463. Similar terminology may be found in A v Secretary of State
for the Home Department (No 2) [2006] 2 AC 221, 262 (Lord Bingham); R (Mohamed) v
Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin),
[171].
153
Sosa v Alvarez-Machain, 542 US 692, 732 (2004), citing Hilao v In re Estate of Marcos,
25 F3d 1467, 1475 (9th Cir, 1994).
154
Sales & Clement (2008) 124 LQR 388, 414.
155
[2007] 1 AC 136, 160, quoting O’Keefe (2001) 72 BY 293, 335. Also: Keyu v Secretary of
State for Foreign and Commonwealth Affairs [2015] 3 WLR 1665, 1705 (Lord Mance).
156
The judiciary’s common law power to create new crimes was surrendered in Knuller
(Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435.
157
[2007] 1 AC 136, 160–3. Also: ibid, 170–1 (Lord Hoffmann); 179 (Lord Mance). Another
persuasive consideration for Lord Bingham was the fact that the incorporation of
aggression into the common law would grant the courts the capacity to review the
executive’s conduct of foreign affairs and the deployment of armed forces, areas
traditionally considered non-justiciable: ibid, 162–3.
158
[1938] 4 All ER 786, 790. Also: Mortensen v Peters (1906) 8 F (JC) 93 (Scottish High
Court of Justiciary); Polites v Commonwealth (1945) 70 CLR 60; Roussety v The Attorney
General (1967) 44 ILR 108.
159
(1995) 103 ILR 420; upheld on appeal: (1997) 107 ILR 536.
160
Al-Saadoon v Secretary of State for Defence [2015] 3 WLR 503, 580 (Leggatt J). Also:
Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] 3 WLR 1665, 1697
(Lord Neuberger).
161
West Rand Central Gold Mining Co v R [1905] 2 KB 391, 408 (Lord Alverstone CJ).
162
[1938] 4 All ER 786, 790. Also: Keyu v Secretary of State for Foreign and
Commonwealth Affairs [2015] 3 WLR 1665, 1705 (Lord Mance).
163
[2003] EWHC 2222 (QB). Also (far earlier): Emperor of Austria v Day & Kossuth (1861)
3 De GF & J 217, 251 (Turner LJ).
164
[2003] EWHC 2222 (QB), [379].
165
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, 190 (Lord
Steyn), citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
166
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529, 554.
167
[1975] 3 All ER 961, 969–70; ibid, 968 (Lawton LJ). Also: Uganda Co (Holdings) Ltd v
Government of Uganda [1979] 1 Lloyd’s Rep 481, 487 (Donaldson J), criticized by Crawford
(1980) 51 BY 303, 325–6.
168
Compania Naviera Vascongada v SS Christina [1938] AC 485.
169
Also: I Congreso del Partido [1978] 1 QB 500, 518 (Robert Goff J); R v Metropolitan
Stipendiary Magistrate, ex p Pinochet Ugarte (No 1) [2000] 1 AC 61, 77 (Lord Slynn); R v
Jones (Margaret) [2005] QB 259, 273.
170
Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] 3 WLR 1665,
1705.
171
Masterman, The Separation of Powers in the Contemporary Constitution (2011) 89–
114; McLachlan (2014) 223–36.
172
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398
(Lord Fraser), 408 (Lord Scarman), 411 (Lord Diplock), 418 (Lord Roskill); R (Sandiford) v
Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697, 2712–13,
2715–16 (Lords Carnwath and Mance); Youssef v Secretary of State for Foreign and
Commonwealth Affairs [2016] 2 WLR 509, 520–1 (Lord Carnwath).
173
R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA
Civ 1598, [107]. Further: R (Al Rawi) v Secretary of State for Foreign and Commonwealth
Affairs [2008] QB 289.
174
R (Gentle) v Prime Minister [2008] 1 AC 1356. Cf R (Smith) v Oxfordshire Assistant
Deputy Coroner [2011] 1 AC 1; Smith v Ministry of Defence [2014] AC 52.
175
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Lewis v
Attorney-General of Jamaica [2001] 2 AC 50 (PC), 77 (Lord Slynn).
176
A v Secretary of State for the Home Department [2005] 2 AC 68, 146 (Lord Scott). Also:
Cook v Sprigg [1899] AC 572, 578; West Rand Central Gold Mining Co Ltd v R [1905] 2 KB
391, 408–9 (Lord Alverstone CJ); R v Ministry of Defence, ex p Smith [1996] QB 517, 558
(Sir Thomas Bingham MR); R v Khan [1997] AC 558, 581–2 (Lord Nolan); R (Campaign for
Nuclear Disarmament) v The Prime Minister [2002] EWHC 2777 (Admin), [36]–[37] (Simon
Brown LJ).
177
Fatima (2005) 273–4.
178
R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin),
[36]–[41] (Simon Brown LJ).
179
[2015] AC 359, 378. Also: Mohammed (Serdar) v Secretary of State for Defence [2016]
2 WLR 247, 353 (Lord Thomas).
180
Occidental Exploration & Production Co v Ecuador [2006] QB 432, 467. Cf Gold
Reserve Inc v Venezuela [2016] EWHC 153 (Comm).
181
R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332. Further: Sands &
Clement (2008) 124 LQR 388, 397.
182
[2008] 1 AC 332, 357 (Lord Rodger). Cf R (Quark Fishing Ltd) v Secretary of State for
Foreign and Commonwealth Affairs [2006] 1 AC 529, 544 (Lord Bingham), 545–6 (Lord
Nicholls), 559 (Lord Hope).
183
Fatima (2005) 279, 281–2.
184
Human Rights Act 1998 (Designated Derogation) Order 2001 (UK).
185
(2004) 137 ILR 1, 50 (68). Also: R (European Roma Rights Centre) v Immigration
Officer at Prague Airport [2005] 2 AC 1, 45–7 (Lord Steyn), 64–5 (Baroness Hale).
186
R v Secretary of State for the Home Department, ex p Launder [1997] 1 WLR 839, 867
(Lord Hope); R v DPP, ex p Kebilene [2000] 2 AC 326, 367 (Lord Steyn). But the treaty must
be the basis of the decision, not simply mentioned in passing by the decision-maker: R
(Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756, 851.
187
Generally: McLachlan (2014) 523–45.
188
[2017] UKSC 3. It is not to be confused with what is sometimes referred to as the
domestic act of state doctrine: cf Buron v Denman (1848) 2 Ex D 167; Rahmatullah (No 2) v
Ministry of Defence; Mohammed v Ministry of Defence [2017] UKSC 1. In Lady Hale’s
words, this applies to ‘sovereign acts [of the Crown] … committed abroad; in the conduct of
the foreign policy of the state; so closely connected to that policy to be necessary in
pursuing it; and at least extending to the conduct of military operations which are
themselves lawful in international law’: ibid, [37]. Generally: Perreau-Saussine (2007) 78 BY
176; McLachlan (2014) ch 7.
189
Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888, 932–3. For criticism of the
breadth of the dictum: Crawford (1982) 53 BY 253, 259–68.
190
Fatima (2005) 385.
191
E.g. R v Bow Street Magistrate, ex p Pinochet (No 1) [2000] 1 AC 61, 104 (Lord Lloyd,
diss).
192
Ibid, 90; High Commissioner for Pakistan v Prince Mukkaram Jah [2016] EWHC 1465
(Ch), [89] (Henderson J).
193
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1108 (Lord
Hope).
194
AM Luther v James Sagor & Co [1921] 3 KB 532, 548 (Warrington LJ); Buttes Gas and
Oil Co v Hammer (No 3) [1982] AC 888, 934 (Lord Wilberforce); Kuwait Airways Corp v
Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 922 (Lord Hope); Jones v Saudi Arabia
[2004] EWCA Civ 1394, [10]; [2005] QB 699; Yukos Capital Sarl v OJSC Rosneft Oil Co (No
2) [2014] QB 458, 486 (Rix LJ).
195
R v Bow Street Magistrate, ex p Pinochet (No 1) [2000] 1 AC 61, 106 (Lord Nicholls);
Banca Carige v Banco Nacional de Cuba [2001] 3 All ER 923, [29] (Lightman J).
196
13 December 1957, 359 UNTS 273.
197
R v Secretary of State for the Home Department, ex p Johnson [1999] QB 1174, 1186
(Bell J).
198
R v Bow Street Magistrate, ex p Pinochet (No 1) [2000] 1 AC 61, 106 (Lord Nicholls); R
v Bow Street Magistrate, ex p Pinochet (No 3) [2000] 1 AC 147, 269 (Lord Millett); Yukos
Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, 486 (Rix LJ); High Commissioner
for Pakistan v Prince Mukkaram Jah [2016] EWHC 1465 (Ch), [89] (Henderson J). On state
immunity: chapter 22.
199
R v Bow Street Magistrate, ex p Pinochet (No 1) [2000] 1 AC 61, 118 (Lord Steyn); cf
ibid, 103 (Lord Lloyd, diss). Cf Rahmatullah v Secretary of State for Foreign and
Commonwealth Affairs [2013] 1 AC 614, 639 (Lord Kerr); R (Khan) v Secretary of State for
Foreign and Commonwealth Affairs [2014] 1 WLR 872, 884–8 (Lord Dyson MR).
200
[1976] AC 249, 265 (Lord Hodson), 277–8 (Lord Cross).
201
[2002] 2 AC 883, 1102; O’Keefe (2002) 73 BY 400. Also: Jones v Saudi Arabia [2005]
EWCA 1394, [90] (Mance LJ); R (Abbasi) v Secretary of State for Foreign and
Commonwealth Affairs [2002] EWCA Civ 1598, [57]–[67] (Lord Phillips MR).
202
Kuwait Airways Corp v Iraqi Airways Company (Nos 4 and 5) [2002] 2 AC 833, 1081.
203
Oppenheimer v Cattermole [1976] AC 249, 265 (Lord Hodson), 277–8 (Lord Cross);
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1081 (Lord
Nicholls), 1103 (Lord Steyn).
204
Oppenheimer v Cattermole [1976] AC 249, 263 (Lord Hailsham), 278 (Lord Cross),
282–3 (Lord Salmon); Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, 486
(Rix LJ).
205
Belhaj v Straw: Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3, noted Sanger
[2017] CLJ 223.
206
[2017] UKSC 3, [31] (Lord Mance); [116] (Lord Neuberger); [197] (Lord Sumption).
207
[2017] UKSC 3, [41] (Lord Mance, but leaving open ‘a clear governmental indication as
to real and likely damage to United Kingdom foreign policy or security interests’: [105]);
[241] (Lord Sumption).
208
[2017] UKSC 3, [34] (Lord Mance) (applicable to property claims only); [129]–[130]
(Lord Neuberger); [227]–[232], [262]–[266] (Lord Sumption) (applicable to all claims
including personal injury, but subject to an exception for breaches of peremptory norms,
notably torture).
209
[2017] UKSC 3, [99] (Lord Mance).
210
Ibid, [160] (Lord Neuberger).
211
Ibid, [168] (Lord Neuberger) (‘bearing in mind the severity and flagrancy of the alleged
interference with his rights, and the length of time for which it allegedly lasted’: ibid,
[172]).
212
1 Restatement Third §§111–15; draft Restatement Fourth, Treaties (2017) §§101–13;
Paust, International Law as Law of the United States (2nd edn, 2003); Dubinsky in Shelton
(2011) 631; Bradley, International Law in the US Legal System (2nd edn, 2015).
213
1 Restatement Third §111, comment (d); draft Restatement Fourth, Treaties (2017)
§101; Dubinsky in Shelton (2011) 631, 641–2.
214
301 US 324, 331 (1937).
215
27 US 253 (1829).
216
E.g. Iwasawa (1986) 26 Va JIL 635; Paust (1988) 82 AJIL 760; Buergenthal (1992) 235
Hague Recueil 303; Vásquez (1995) 89 AJIL 695; Hathaway (2008) 117 Yale LJ 1236;
Bederman (2008) 102 AJIL 528; Bradley (2008) 102 AJIL 540; Charnovitz (2008) 102 AJIL
551; Vásquez (2008) 102 AJIL 563; Wuerth (2009) 13 Lewis & Clark LR 1; Huang (2011) 79
Fordham LR 2211; Sloss (2012) 53 Harv ILJ 135; Iwasawa (2016) 54–90.
217
Further: 1 Restatement Third §111; draft Restatement Fourth, Treaties (2017) §110.
218
552 US 491 (2008).
219
Avena, ICJ Reports 2004 p 12.
220
22 April 1963, 596 UNTS 261.
221
US v Postal, 589 F2d 862, 877 (5th Cir, 1979). This approach was favoured by the
dissenters in Medellin, who urged reliance on a ‘practical, context-specific’ methodology to
determining self-execution: 552 US 491, 549 (2008) (Justice Breyer, diss). This was rejected
by the majority on the basis that it was indeterminate and would ‘assign to the courts—not
the political branches—the primary role in deciding when and how international
agreements would be enforced’: ibid, 516. Further: Iwasawa (2016) 64–86.
222
552 US 491, 508 (2008). Further: McGuinness (2008) 102 AJIL 622.
223
552 US 491, 511 (2008). Also: Sanchez-Llamas v Oregon, 548 US 331, 354 (2006); Leal
Garcia v Texas, 131 S Ct 2866, 2867 (2011). Cf Medellin v Dretke, 544 US 660, 693–4
(2005) (Breyer J, diss), arguing that Art 94 of the Charter does require internal compliance
by US domestic courts with decisions of the International Court.
224
552 US 491, 521 (2008). Cf Vásquez (2008) 83 Notre Dame LR 1601; Iwasawa (2016)
71–2.
225
1 Restatement Third §111, comment 5. Also: Henkin, Foreign Affairs and the United
States Constitution (2nd edn, 1996) 20. Other commentators argue for a presumption
against self-execution: e.g. Yoo (1999) 99 Col LR 1955, 2218. Also: Iwasawa (2016) 67–8;
ESAB Group Inc v Zurich Insurance PLC, 685 F3d 376, 387 (4th Cir, 2012).
226
552 US 491, 518, 520 (2008); Bradley (2008) 102 AJIL 540, 545–7; Crootof (2011) 120
Yale LJ 1784, 1787. Also: Al-Bihani v Obama, 619 F3d 1, 15–16 (DC Cir, 2010). Draft
Restatement Fourth, Treaties (2017) §110, comment 3, denies that there is a presumption
either way.
227
E.g. Brzak v United Nations, 597 F3d 107 (2d Cir, 2010). Further: Crook (2010) 104
AJIL 281.
228
Since Medellin, the Senate has taken care to state in both its reports and in
declarations, included in all resolutions of advice and consent, whether treaties (or specific
provisions) are or are not self-executing: Crook (2010) 104 AJIL 100; Crook (2011) 105 AJIL
124; Iwasawa (2016) 75.
229
6 US 64, 118 (1804).
230
E.g. US v Yousef, 327 F3d 56, 92 (2d Cir, 2003); US v Ali, 718 F3d 929, 942 (DC Cir,
2013). Cf Eskridge, Frickey, & Garrett, Statutes and the Creation of Public Policy (4th edn,
2007) 884; Owner-Operator Independent Drivers Association v US Department of
Transportation, 724 F3d 230, 234 (DC Cir, 2013); Bean [2015] BYU LR 1801.
231
Crootof (2011) 120 Yale LJ 1784, 1796–801. Thus, the VCLT, signed but not ratified by
the US, is applied in US courts: e.g. Weinberger v Rossi, 456 US 25, 29 (1982); Committee
of US Citizens living in Nicaragua, 859 F2d 929, 940–1 (DC Cir, 1988).
232
E.g. Khan v Holder, 584 F3d 773 (9th Cir, 2009) (interpreting statute in accordance
with the United Nations Protocol Relating to the Status of Refugees, 4 November 1967, 606
UNTS 267).
233
175 US 677, 700 (1900).
234
E.g. Dickinson (1952) 101 U Penn LR 26; Henkin (1984) 82 Mich LR 1555; Koh (1998)
111 Harv LR 1824.
235
Dubinsky in Shelton (2011) 631, 642–3.
236
1 Restatement Third §111, comment (d).
237
Sosa v Alvarez-Machain, 542 US 692, 737–8 (2004); Samantar v Yousuf, 560 US 305
(2010).
238
1 Restatement Third §111, reporters’ note 4.
239
Dubinsky in Shelton (2011) 631, 644–51; Skinner (2010) 44 Valp ULR 825, 829–31;
Bradley (2nd edn, 2015) 155–8.
240
E.g. Bradley & Goldsmith (1997) 110 Harv LR 815.
241
Dubinsky in Shelton (2011) 631, 644–51.
242
600 F3d 1191, 1198 (DC Cir, 2010).
243
For criticism: Dubinsky in Shelton (2011) 631, 648–9.
244
28 USC §1350. Further: Filartiga v Pena-Irala, 630 F2d 876 (2d Cir, 1980). Also:
Torture Victims Protection Act 1991, which provides a cause of action for any victim of
torture or extrajudicial killing wherever committed: 106 Stat 73.
245
542 US 692 (2004).
246
Ibid, 725.
247
671 F3d 736, 743–4 (9th Cir, 2011).
248
542 US 692, 715 (2004).
249
Cisneros v Aragon, 485 F3d 1226 (10th Cir, 2007); Aranda-Tersero v Comisario, ILDC
2341 (US 2012).
250
133 S Ct 1659, 1669 (2013); cf ibid, 1671 (Breyer J). It was predicted that Kiobel would
almost completely block ATS suits against multinational corporations: Ryngaert, Jurisdiction
in International Law (2nd edn, 2015) 139. The Supreme Court came to the aid of the
prediction in Jesner v Arab Bank Plc, 584 US __ (2018), holding that foreign corporations
may not be defendants in ATS cases in any event. Further: chapter 21.
251
Henkin (1976) 85 Yale LJ 597; Charney (1989) 83 AJIL 805; Franck, Political Questions/
Judicial Answers (1992); Seidman (2004) 37 J Marshall LR 441; Choper [2005] Duke LJ
1457.
252
5 US (1 Cranch) 137, 165–6 (1803).
253
369 US 186, 217 (1962). Also: Schneider v Kissinger, 412 F3d 190 (DC Cir, 2005);
Bancoult v McNamara, 445 F3d 427 (DC Cir, 2006); Gonzalez-Vera v Kissinger, 449 F3d
1260 (DC Cir, 2006).
254
Zivotofsky v Secretary of State, 571 F3d 1227 (DC Cir, 2010), concerning a statute
passed by Congress requiring that ‘Israel’ be inserted as the place of birth for every
American child born in Jerusalem. Further: Crook (2010) 104 AJIL 278; Crook (2011) 105
AJIL 814. The Supreme Court did not apply the principle; the question of Jerusalem’s
political status was distinguished from the interpretation and constitutionality of the
statutory right: Zivotofsky v Secretary of State, 132 S Ct 1421, 1427 (2012); cf ibid, 1437–
41 (Breyer J, diss). Also: Crook (2012) 106 AJIL 644. The case returned to the Supreme
Court in Zivotofsky v Kerry, 576 US __ (2015): it was decided that the statute was an
interference with the President’s exclusive power of recognition.
255
De Sousa v Department of State, 840 F Supp 2d 92 (DDC, 2012).
256
E.g. Goldwater v Carter, 444 US 996 (1976).
257
591 F Supp 1332 (1984). Also: Gilligan v Morgan, 413 US 1 (1973) (composition,
training, equipping, and control of the National Guard non-justiciable); Can v US, 14 F3d
160 (2d Cir, 1994) (issues of succession arising from assets of a foreign state non-
justiciable); Corrie v Caterpillar, 503 F3d 974 (9th Cir, 2007) (provision of military
assistance by US to foreign states a political question).
258
Klinghoffer v SNC Achille Lauro, 937 F2d 44, 49 (2d Cir, 1991).
259
70 F3d 232, 249 (2d Cir, 1995).
260
Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888, 932–3 (Lord Wilberforce), citing
Underhill v Hernandez, 168 US 250, 252 (1897), Oetjen v Central Leather Co, 246 US 297,
304 (1918).
261
1 Restatement Third §443(1).
262
168 US 250 (1897).
263
Ibid, 251–2. Also: Outjen v Central Leather Co, 246 US 297, 300–4 (1918) (stressing the
need to protect comity and ‘the peace of nations’); Ricaud v American Metal Co, 246 US
304, 309 (1918) (‘to accept a ruling authority and to decide accordingly is not a surrender
or abandonment of jurisdiction, rather it is an exercise of it’).
264
1 Restatement Third §443, comment (a).
265
376 US 398, 401 (1964).
266
Ibid, 423. Further: Alfred Dunhill of London Inc v Republic of Cuba, 425 US 682 (1976).
Also: Konowaloff v The Metropolitan Museum of Art, 702 F3d 140, 145–6 (2d Cir, 2012).
267
WS Kirkpatrick & Co Inc v Environmental Tectonics Corp International, 493 US 400
(1990).
268
493 US 400, 405, 409 (1990).
269
Ibid, 409–10.
270
Alfred Dunhill of London Inc v Republic of Cuba, 425 US 682, 711 (1976). Also: Von
Saher v Norton Simon Museum of Art, 754 F3d 712, 726 (9th Cir, 2014).
271
Banco Nacional de Cuba v Sabbatino, 376 US 398, 428 (1964); Kalamazoo Spice
Extraction Co v PMG of Socialist Ethiopia, 729 F2d 422 (6th Cir, 1984); Konowaloff v The
Metropolitan Museum of Art, 702 F3d 140, 145 (2d Cir, 2012).
272
Bernstein v NV Nederlandsche-Amerikannsche Stoomvart-Maatschappij, 210 F2d 375
(2d Cir, 1954).
273
First National City Bank v Banco Nacional de Cuba, 406 US 759, 733 (1972).
274
WS Kirkpatrick & Co Inc v Environmental Tectonics Corp International, 493 US 400,
404–10 (1990).
275
E.g. Alfred Dunhill of London Inc v Republic of Cuba, 425 US 682, 695 (1976); WS
Kirkpatrick & Co Inc v Environmental Tectonics Corp International, 493 US 400, 404–5
(1990).
276
E.g. Von Saher v Norton Simon Museum of Art, 754 F3d 712, 727 (9th Cir, 2014).
277
9 USC §15.
278
Further: Republic of Ecuador v ChevronTexaco Corp, 376 F Supp 2d 334, 367 (SDNY,
2005).
279
22 USC §2370(e)(2).
280
E.g. Banco Nacional de Cuba v Chase Manhattan Bank, 658 F2d 875, 882 (2d Cir,
1981); Compania de Gas de Nuevo Laredo v Entex Inc, 696 F2d 332 (5th Cir, 1982).
281
28 USC §1350.
282
Mohamad v Palestinian Authority, 132 S Ct 1702 (2012).
283
Constitution of the Fourth Republic, Preamble, para 14.
284
Ibid, para 15.
285
Decaux in Shelton (2011) 205, 235.
286
E.g. Re Self-Determination of the Comoros Islands, 30 December 1975, Rec 41, 74 ILR
91; Nationalization Law, 16 January 1982, Rec 18, 75 ILR 700; Nationalization Law (No 2),
11 February 1982, Rec 31, 75 ILR 700; Law on the Evolution of New Caledonia, 8 August
1985, Rec 63; Law on the Evolution of New Caledonia (No 2), 23 August 1985, Rec 70.
287
Treaty on European Union, 9 April 1992, Rec 55, 93 ILR 337.
288
Treaty on European Union, 7 February 1992, OJ C 191/1.
289
E.g. Carreau, Droit international (9th edn, 2007) 447.
290
Decaux in Shelton (2011) 205, 236–7.
291
E.g. Paulin [2000] Rec Lebon 317; Zaidi [2000] Rec Lebon 159; Aquarone [1997] Rec
Lebon 206. Also: Saleh [2011] Rec Lebon 473.
292
23 May 1949; amended by the Unification Treaty, 31 August 1990, 30 ILM 457. The
most recent (58th) amendment occurred on 27 July 2010. On reunification: Harris (1991) 81
Geo Rev 170. Notable considerations of Art 25 by the Constitutional Court include:
Philippine Embassy, 46 BVerfGE 342 (1977), 65 ILR 146; National Iranian Oil Co, 64
BVerfGE 1 (1983), 65 ILR 215; 75 BVerfGE 1 (1988) (further: 2 BvR 38/06 (2007));
Diplomatic Immunity (Syria), 96 BVerfGE 68 (1997), 115 ILR 595; 117 BVerfGE 141 (2006);
Argentine Necessity, 118 BVerfGE 124 (2007), 138 ILR 1; Boere v Germany, 2 BvR 148/11
(2011).
293
Pithily rendered in German as Völkerrechtsfreundlichkeit des Grundgesetzes: Folz in
Shelton (2011) 240, 245–6.
294
Constitutional Court, 18 June 1979, Judgment No 48, 78 ILR 101.
295
Constitutional Court, 23 March 2001, Judgment No 73. Earlier: Constitutional Court, 29
January 1996, Judgment No 15.
296
Scholars differ on whether peremptory norms are subject to the same limitations. It
seems arguable that they may be considered themselves as ‘fundamental principles of the
constitutional order’: Cataldi in Shelton (2011) 328, 346, 349–52. Also: Constitutional
Court, 29 December 1988, Judgment No 1146; Ferrini v Federal Republic of Germany,
Corte di Cassazione, 11 March 2004, Judgment No 5044, 128 ILR 659.
297
Corte di Cassazione, 13 January 2009, Judgment No 1072.
298
Jurisdictional Immunities of the State (Germany v Italy), ICJ Reports 2012 p 99, 154–5.
299
E.g. Military Prosecutor v Albers, Corte di Cassazione, 9 August 2012, Case No
32139/2012, ILDC 1921 (IT 2012); Germany v De Guglielmi, Court of Appeal, 14 May 2012,
Judgment No 941/2012, ILDC 1905 (IT 2012); Frascà v Germany, Corte di Cassazione, 21
February 2013, Case No 4284/2013, ILDC 1998 (IT 2013); Germany v Ferrini, Corte di
Cassazione, 21 January 2014, Judgment No 1136, ILDC 2724 (IT 2014).
300
Law No 5/2013, Art 3. Further: Nesi (2013) 11 JICJ 185, 186–95.
301
Alessi v Germany, 21 January 2014, Order No 85/2014, ILDC 2725 (IT 2014).
302
Constitutional Court, 22 October 2014, Judgment No 238. Further: various items (2014)
24 It YIL 1–60; Cannizzaro (2015) 98 Rdi 126; Pavoni (2015) 109 AJIL 400; various items
(2016) 14 JICJ 573–636.
303
Further: Cataldi in Shelton (2011) 328, 342–4.
304
On general principles: Re Hartmann and Pude, Constitutional Court, 18 April 1967,
Judgment No 48, 71 ILR 232; Zennaro, Constitutional Court, 8 April 1976, Judgment No 69,
77 ILR 581; Constitutional Court, 27 April 1994, Judgment No 168. On peremptory norms:
Ferrini v Federal Republic of Germany, Corte di Cassazione, 11 March 2004, Judgment No
5044, 128 ILR 659; Lozano v Italy, Corte di Cassazione, 24 July 2008, Case No 31171/2008,
ILDC 1085 (IT 2008); Corte di Cassazione, 13 January 2009, Judgment No 1072.
305
Butler, Russian Law (3rd edn, 2009) 693–6.
306
Marochkin (2007) 6 Chin JIL 329, 330.
307
Plenum of the Supreme Court of the Russian Federation, Decree No 5, 10 October
2003, §1 as amended by Plenum of the Supreme Court of the Russian Federation, Decree
No 4, 5 March 2013.
308
Tikhomirov in Shelton (2011) 517, 523. But cf Danilenko (1999) 10 EJIL 51, 57–9,
identifying an emerging trend in the application of custom in the jurisprudence of the
Russian Constitutional Court. Danilenko goes on to note, however, that ‘ordinary’ Russian
courts have much less experience in applying custom, and are more likely to rely on treaties
and ‘commercial customs in the sphere of international trade’ (ibid, 58–9). Further:
Marochkin (2007) 6 Chin JIL 329, 344, who despite his initial pessimism, nonetheless
concludes ‘we can speak [generally] about a positive attitude of the Court system towards
international law’.
309
Re Khodorkovskiy (2006) 133 ILR 365.
310
Ibid, 370.
311
Alkema in Shelton (2011) 407, 419.
312
E.g. General Provisions Kingdom Legislation Act of 1829, Art 13(a): ‘The courts’
jurisdiction and the enforceability of judgments is subject to the exceptions recognised in
international law’.
313
Alkema in Shelton (2011) 407, 420.
314
Decaux in Shelton (2011) 207, 216. This much is confirmed by the Conseil
Constitutionnel: Treaty establishing a European Constitution, 19 November 2004, Rec 173.
The Conseil d’État only conceded that Art 55 applies to legislation that postdates the treaty
in question in 1989 (Re Nicolo (1989) 93 ILR 286). In Sarran, the Conseil held that the
superiority of treaties did not extend to provisions of a constitutional character: [1998] Rec
Lebon 368. Also: Syndicat national de l’industrie pharmaceutique [2001] Rec Lebon 624.
315
The sole exception to this rule is where a new treaty addresses directly a previously
ratified treaty: Treaty on European Union (1992) 93 ILR 337.
316
The use of this procedure is not uncommon. The Treaty of Maastricht was the subject
of three referrals: one presidential leading to Treaty on European Union (1992) 93 ILR 337;
a senatorial referral leading to Treaty on European Union (No 2) (1992) 98 ILR 180; and
one referral by the National Assembly on the referendum law authorizing ratification,
leading to Treaty on European Union (No 3), 23 September 1992, Rec 94. Further: Decaux
in Shelton (2011) 207, 217. Generally: Neuman (2012) 45 Cornell ILJ 257, 267–304, 315–19,
322–49.
317
318
Ibid, 223–5. Also: Neuman (2012) 45 Cornell ILJ 257, 305–7.
319
Abortion Law (1975) 74 ILR 523. When acting as electoral judge, however, the Conseil
will assess the conformity of domestic laws to international treaties (Elections of the Val
d’Oise (1988) 111 ILR 496).
320
Administration des Douanes v Société Cafés Jacques Vabre (1975) 93 ILR 240, 263.
This approach has been expanded beyond the EU sphere: e.g. Glaeser (1976) 74 ILR 700;
Barbie (1985) 78 ILR 124.
321
[2007] Rec Lebon 78.
322
National Federation of Guardianship Associations [2000] Rec Lebon 781; Prefect of La
Gironde v Mhamedi (1992) 106 ILR 204 (suspension of application of treaty must also be
subject to publication). Further: Decaux in Shelton (2011) 207, 226.
323
Finance Act 1981, 30 December 1980, Rec 53; Higher Education Framework Act, 30
October 1981, Rec 31.
324
325
17 July 1998, 2187 UNTS 3.
326
Re ICC Statute, 22 January 1999, Rec 29, 125 ILR 475.
327
E.g. GITSI [1992] Rec Lebon 346, 106 ILR 198; Mme Chevrol-Benkeddach [1999] Rec
Lebon 116.
328
Decaux in Shelton (2011) 207, 227. Also: Neuman (2012) 45 Cornell ILJ 257, 355.
329
Chevrol v France [2003] EtCHR 49636/99, [76]–[84].
330
Chériet-Benseghir [2010] Rec Lebon 251. Also: Neuman (2012) 45 Cornell ILJ 257,
356–7.
331
Paulus in Sloss (ed), The Role of Domestic Courts in Treaty Enforcement (2009) 209,
214–18; Björgvinsson (2015) 45–7.
332
There is some disagreement as to how this is brought about. Total incorporation is seen
as too radical, whereas transformation tends to decontextualize the treaty from the
international sphere. The approach most germane to Art 59(2) is that of ‘execution’ which
characterizes the legislative ratification of the treaty as a legislative directive to follow the
provisions of the treaty as international law within the domestic order: Paulus (2009) 209,
217–18.
333
Ibid, 209–10.
334
Folz in Shelton (2011) 240, 244; cf Paulus in Sloss (2009) 209, 221–2; Arato in Aust &
Nolte (2016) 198, 206.
335
Folz in Shelton (2011) 240, 242–3.
336
111 BVerfGE 307, 328 (2004).
337
Von Hannover v Germany [2004] ECtHR 59320/00, overruling 101 BVerfGE 361 (1999).
338
Generally: 111 BVerfGE 307 (2004).
339
The court upheld this realignment with Strasbourg in principle in 120 BVerfGE 180
(2008); it was then taken (again) to the ECtHR (Von Hannover v Germany (No 2) [2012]
ECtHR 60641/08) which found the Federal Constitutional Court’s approach consistent with
the ECHR. Also: Von Hannover v Germany (No 3) [2013] ECtHR 8772/10. Similar
developments have occurred in preventive detention cases: e.g. 109 BVerfGE 133 (2004),
overruled in M v Germany [2009] ECtHR 19359/04, in turn implemented in 128 BVerfGE
326 (2011). Also: OH v Germany [2011] ECtHR 4646/08; Schmitz v Germany [2011] ECtHR
30493/04. Further: Kirchhof (2011) 64 NJW 3681.
340
Corte di Cassazione, 22 March 1984, Judgment 1920.
341
Cataldi in Shelton (2011) 328, 338.
342
Ibid, 339.
343
Ibid, 342.
344
E.g. Constitutional Court, 24 October 2007, Judgment 248; Constitutional Court, 24
October 2007, Judgment 249; Constitutional Court, 4 December 2009, Judgment 317;
Constitutional Court, 18 July 2013, Judgment 210; Constitutional Court, 25 July 2011,
Judgment 245; cf Constitutional Court, 28 November 2012, Judgment 264.
345
Butler (3rd edn, 2009) 696–7.
346
Further: Tikhomirov in Shelton (2011) 517, 521.
347
2003, §8 (‘The rules of the effective international treaty of the Russian Federation, the
consent on the mandatory nature of which was issued in the form of a federal law, shall be
given priority against the laws of the Russian Federation’). Also: Plenum of the Supreme
Court of the Russian Federation, Decree No 8, 31 October 1995. If consent to a treaty was
not given by way of ratification in the form of a federal law, then treaty rules will only have
priority with respect to subordinate normative-legal acts issued by the governmental
agency which concluded the treaty: Butler in Sloss (2009) 410, 421.
348
Burnham, Maggs, & Schwartz, Law and Legal System of the Russian Federation (6th
edn, 2015) 33.
349
Members of the State Duma, Constitutional Court, 9 July 2012, No 17-П, ILDC 1940
(RU 2012).
350
Federal Law No 54-фз of 30 March 1998.
351
Plenum of the Supreme Court of the Russian Federation, Decree No 21, 27 June 2013,
§2.
352
Constitutional Court, 14 July 2015, No 21-П. Also: Constitutional Court, 6 December
2013, No 27-П.
353
Federal Law No 7–фкз of 14 December 2015 on Amendments to the Federal
Constitutional Law. Also: Constitutional Court, 19 April 2016, No 12-П.
354
2003, §4. In 2007 Federal Law No 101-фз of 15 July 1995 was amended to give Rosatom, a
state-owned corporation, treaty-making capacity: Butler (2008) 102 AJIL 310; Butler (3rd
edn, 2009) 696.
355
2003, §3.
356
Butler in Sloss (2009) 410, 417. The period between entry into force and publication
may be as long as several years: ibid, 434.
357
2003, §3.
358
In particular the requirement of official publication: Butler in Sloss (2009) 211, 436–8.
359
Ushakov v Russian Federation, Constitutional Court, 27 March 2012, No 8-П, ILDC
1930 (RU 2012).
360
Tikhomirov in Shelton (2011) 517, 523. Also: Plenum of the Supreme Court of the
Russian Federation, Decree No 5, 10 October 2003, §5. Further: Butler in Sloss (2009) 411,
418–21.
361
Butler in Sloss (2009) 411, 418.
362
Anchukov & Gladkov v Russia, Constitutional Court, decision of 19 April 2016, noted
(2017)111 AJIL 461.
363
For criticism, see Opinion 832/2016, Report of the Venice Commission, 13 June 2016.
364
Reference is sometimes made to Art 93 of the Constitution, which provides that
‘[p]rovisions of treaties and resolutions by international institutions that are binding on all
persons by virtue of their contents shall become binding after they have been published’ as
providing a constitutional basis for the validity of treaties, but this is better characterized as
going to their direct effect within municipal law: Nollkaemper in Sloss (2009) 326, 331–3.
365
NJ (1919) No 371.
366
Nollkaemper in Sloss (2009) 326, 332.
367
Constitution of the Netherlands, Art 90 (‘The Government shall promote the
development of the international rule of law’). On this imperative: Besselink (2003) 34 NYIL
89.
368
On the role of Parliament in the treaty-making process: Alkema (1984) 31 NILR 307;
van Dijk & Tahzib (1991) 67 ChiKentLR 413.
369
Law on the Approval and Promulgation of Treaties, Stb 1994, 542, Art 1 (Law on
Treaties). Also: Klabbers (1995) 44 ICLQ 629. The government is not required to inform
Parliament as the content of the treaty in question, merely its progress, though this does
not prevent Parliament from requesting that further information be provided.
370
Nollkaemper in Sloss (2009) 326, 328.
371
Further: Klabbers (1995) 44 ICLQ 629, 631–5.
372
The justification for this is rooted in the separation of powers; were vague or hortatory
provisions to be given supremacy, this would give too much power to the courts to override
the codified will of the legislature: Nollkaemper in Sloss (2009) 326, 332–5.
373
See e.g. NJ (1995) No 619, reported in Barnhoorn (1997) 27 NYIL 336. On the process:
Nollkaemper in Sloss (2009) 326, 341–5.
374
NJ (2015) No 12. Also: NJ (2011) No 354.
375
The principle applies irrespective of whether the law so interpreted entered into force
before or after the adoption of the treaty: Nollkaemper in Sloss (2009) 326, 349–50.
376
For a comparative view of emerging trends: Amaroso (2010) 23 LJIL 933.
377
UK and Governor of Hong Kong (1993) 106 ILR 233.
378
Ibid, 236. Also: GITSI (1992) 106 ILR 198, 200.
379
Further: UK and Governor of Hong Kong [1993] Rec Lebon 267, 106 ILR 233, 238–40.
380
Delle Buttner [1953] Rec Lebon 184.
381
De Malglaive (1970) 72 ILR 236.
382
Petit T [1973] Rec Lebon 921.
383
The Greens Association [1984] Rec Lebon 382.
384
Paris de Bollardière (1975) 74 ILR 95.
385
Société Sapvin (1988) 89 ILR 6.
386
Prefect of La Gironde v Mahmedi (1992) 106 ILR 204.
387
GITSI (1992) 106 ILR 198.
388
Krikorian [2012] Rec Lebon 646.
389
Daoud [2014] Rec Lebon 572.
390
Baynast [2014] Rec Lebon 58.
391
Mégret [2000] Rec Lebon 291.
392
Committee against the Iraq War [2003] Rec Lebon 707.
393
UK and Governor of Hong Kong (1993) 106 ILR 223, 239–40.
394
Finance Ministry [1966] Rec Lebon 476.
395
Yener and Erez (1987) 89 ILR 1.
396
Société Nachfolger Navigation Co Ltd (1987) 89 ILR 3.
397
Case C-241/87 Maclaine Watson & Co Ltd v Council and Commission of the European
Communities (1990) 96 ILR 201, 217–18.
398
UK and Governor of Hong Kong [1993] Rec Lebon 267, 106 ILR 223, 240–3.
399
This form of jurisdiction is known as Organstreit or ‘dispute between constitutional
organs’: Quint (2006) 65 Md LR 152, 156–7.
400
Basic Law, Arts 92–4, 100.
401
Folz in Shelton (2011) 240, 245.
402
Basic Law, Art 2(1) refers to ‘freedom of personality’. The Federal Constitutional Court
has interpreted this as including any and all things that a person might wish to do: 6
BVerfGE 32, 41 (1957). Further: Currie (1999) 165–6.
403
E.g. 85 BVerfGE 191, 205–6 (1992) (employer permitted to argue that a ban on
nocturnal employment discriminated against female employees).
404
E.g. Jurisdiction over Berlin, 20 BVerfGE 257, 268–71 (1966), 75 ILR 113, 114–16
(excessive delegation); 26 BVerfGE 246, 253–8 (1969) (lack of federal authority).
405
E.g. Abortion Law, 39 BVerfGE 1 (1975), 74 ILR 523 (challenging a statute relaxing the
criminal penalties for abortion).
406
Folz in Shelton (2011) 240, 244.
407
Quint (2006) 65 Md LR 152, 161–2.
408
On the basis that German forces could only be deployed for the purposes of ‘defence’:
Basic Law, Art 87a(2).
409
90 BVerfGE 286 (1994), 106 ILR 319, 327–30. Further: Quint, The Imperfect Union
(1997) 290–6. Also: 2 BvE 4/08 (2010).
410
Treaty concerning the basis of relations between the Federal Republic of Germany and
the German Democratic Republic, 21 December 1972, Bundesgesetzblatt II (1973) 423.
411
Relations Treaty between the FRG and GDR, 36 BVerfGE 1 (1973), 78 ILR 149. The
Court gave a restrictive interpretation to the agreements so as to avoid the full recognition
of the GDR in international law.
412
Maastricht Treaty 1992, 89 BVerfGE 155 (1993), 98 ILR 196. The Court affirmed that
any further derogation from German sovereignty would be met with close scrutiny.
413
66 BVerfGE 39 (1983), 106 ILR 353.
414
Ibid, 361–2.
415
Currie (1999) 170–1.
416
Chemical Weapons Deployment (Danger to Life) (1987) 106 ILR 389, 395.
417
Varvarin Bridge, 2 BvR 2660/06 (2013).
418
Further: Gärditz (2014) 108 AJIL 86; Henn (2014) 12 JICJ 615; Stöckle (2014) 57 GYIL
613; Mehring (2015) 15 Int Crim LR 191.
419
Frulli (2003) 1 JICJ 406, 410.
420
Constitution of Italy, arts 78 and 87.
421
President of the Council v Marcović, Corte di Cassazione, 5 June 2002, Judgment No
8157, 128 ILR 652, 655–6. Frulli argues that while the initial declaration of war may not be
justiciable, those individual acts performed in the prosecution of armed conflict ought to be,
with any other alternative depriving a plaintiff of his or her rights under arts 2 and 24 of the
Constitution. Moreover, this argument is consistent with representations previously made
by the Italian government before the ECtHR: Frulli (2003) 1 JICJ 406, 412–14. This
distinction was later applied and individual acts were found to be justiciable: Ferrini v
Federal Republic of Germany, Corte di Cassazione (2004) 128 ILR 658, 665–6.
422
There is here a certain tension with art 2 of the Constitution, which provides that ‘[t]he
Republic recognizes and guarantees the inviolable rights of man, as an individual, and in
the social groups where he expresses his personality, and demands the fulfilment of the
intransgressible duties of political, economic, and social solidarity’. This is paired with art
24, which itself provides the right to an effective judicial remedy for the violation of
fundamental rights and interests. Further: Frulli (2003) 1 JICJ 406, 412.
423
Burnham, Maggs, & Schwartz (6th edn, 2015) 852–3.
424
Ibid, 856.
425
Butler (3rd edn, 2009) 172–7.
426
Constitution of the Russian Federation, Art 125(2).
427
Ibid, Art 125(4).
428
Burnham, Maggs, & Schwartz (6th edn, 2015) 76.
429
Ibid, 77. Further: Trochev (2008) ch 3.
430
Cf Members of the State Duma, Constitutional Court, 9 July 2012, No 17-П, ILDC 1940
(RU 2012).
431
Ruling No 10-P, VKS 1995 No 11, 3 (31 July 1995).
432
Additionally, the court managed to avoid giving substantive consideration to the human
rights issues raised by the case, by referring them to unspecified further proceedings
before the criminal courts: Pomeranz (1997) 9 RCEEL 9, 26–8.
433
Generally: van der Schyff (2010) 11 GLJ 275.
434
Van der Schyff (2010) 11 GLJ 275, 279–81.
435
E.g. Foundation for the Prohibition of Cruise Missiles, NJ (1991) No 248, 106 ILR 400,
concerning an attempt by a community organization to pre-empt the Dutch government
from permitting US cruise missiles to be based on Dutch soil. In Germany, the question was
considered effectively non-justiciable: Cruise Missiles (Danger to Life), 66 BVerfGE 39
(1983), 106 ILR 353. The Dutch court did not even refer to the doctrine when dismissing
the application.
436
Association of Lawyers for Peace v Netherlands, NJ (2002) No 217, 3.3.
437
Generally: Fleurin (2010) 57 NILR 262.
438
Here, the interlocutory judge paid particular attention to the effects that such an order,
if granted, would have on US–Dutch relations and Dutch foreign policy as a whole: Hague
City Party v The Netherlands, The Hague District Court, 4 May 2005, Case No KG 05/432,
ILDC 849 (NL 2005), 3.4–3.5, 3.8.
439
NJ (2004) No 329, 3.4. Also: NJ (2003) No 35 (concerning Kosovo).
440
Netherlands v Mustafić-Mujić, 6 September 2013, App No 12/03329, 3.18.3, reported
in Ryngaert (2013) 60 NILR 447; Netherlands v Nuhanović, 6 September 2013, App No
12/03324, ILDC 2061 (NL 2013).
441
Urgenda Foundation v The Netherlands, The Hague District Court, 24 June 2015, Case
No C/09/456689, ILDC 2456 (NL 2015); upheld on appeal, 9 October 2018 (Hague CA).
Further: de Graff & Hans (2015) 27 JEL 517; Lambrecht & Ituarte-Lima (2016) 18 Env LR
57; Cox (2016) 34 JENRL 143; Roy & Woerdman (2016) 34 JENRL 165.
442
The Netherlands v Urgenda Foundation, The Hague Court of Appeal, 9 October 2018,
Case No 200.178.245/01 (NL 2018).
443
Monists underestimate this aspect of the matter or gloss it over with conceptualism.
The fact is that national law is more viable in terms of organization whereas international
law is less of a system in this sense. From this perspective, there is some substance in the
view that international law derives from the activities of the constitutional organs of states.
International law has often been dependent on state machinery for its enforcement.
Although there has been a strengthening of international institutions, especially of dispute
settlement (see chapter 32), international law remains largely dependent on state
machinery for enforcement. Further, many aspects of international law are to be
implemented primarily at a domestic level and international institutions play a secondary
role. This view, characterized as monism-in-reverse, was supported by e.g. Decencière-
Ferrandière (1933) 40 RGDIP 45. Critics have tended to caricature this position, but it
accords with widely held views that international law is international and not dependent on
a supranational coercive order.

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1 Brownlie Chapter 3 - The Relations of International and National Law

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Part I Preliminary topics, 3 The relations of

international and national law

From: Brownlie's Principles of Public International Law (9th Edition)

Previous Edition (8 ed.)

Content type: Book content

(p. 48) 2. Relations of international and national law: An

The characterization of an act of a State as internationally wrongful is governed by

Thus, a decision of a national court or a legislative measure may constitute evidence of a

(p. 51) (iii) Treatment of national law by international tribunals

(B) International law before national courts: General considerations

3. International law in the common law tradition

(B) Treaties in English law

Their Lordships recognise the constitutional importance of the principle that

[I]n construing any provision in domestic legislation which is ambiguous in the

(C) Customary international law

Similarly Lloyd-Jones LJ put it in the following terms:

By contrast, in Thai-Europe Tapioca Service Ltd v Government of Pakistan Scarman LJ said:

But it is excessively parochial to think that an incorporated rule of international law is

(D) Non-justiciability and act of state

(E) The common law tradition in the united states

Although we too recognize the potentially detrimental effects of judicial action in

In the absence of a treaty or other unambiguous agreements regarding controlling

Every sovereign state is bound to respect the independence of every other

4. International law in the civil law tradition

(A) Customary international law in the European tradition

The universally recognized principles of international law should be understood as

Treaties or agreements duly ratified or approved shall, upon publication, prevail

Peace Treaties, Trade agreements, treaties or agreements relating to international

The category of treaties defined by article 53 is potentially broad, rendering France in

susceptible to being engaged … because of obligations that belong to it to ensure

[T]he Federal Constitutional Court is also competent to prevent and remove, if

in order to comply with the requirements for the admissibility of constitutional

In Urgenda Foundation v The Netherlands, limited deference to governmental authorities

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