Professional Documents
Culture Documents
Objectives
At the end of this topic you should be able to
• Explain the relationship between international law and domestic
law, including the contrasting theories of monism and dualism
• Identify the possible impact of domestic law on decisions of
international courts and tribunals and on international law
generally
• Describe the difference between the doctrines of incorporation and
transformation in how international law might influence domestic
law
• Recognise that each individual state’s legal system decides
whether to adopt an incorporation or a transformation approach,
and that such an approach may be different in respect of treaties
and customary international law
• Indicate the approaches of the United Kingdom, South Africa and
the USA to the above issues
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Activity 4.1 Explain in a few sentences each the following theories or views of the
relationship between international law and domestic legal systems:
1. Monism
2. Dualism
3. The Fitzmaurice view (CB, pp 105-106)
Activity 4.2 In what ways might national (ie. domestic) laws be relevant before
international tribunals and courts?
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If in a particular area of the law, an international court/tribunal must rely Activity 4.3
on national law, will it necessarily be bound by decisions of domestic
courts?
According to the Brazilian Loans case (CB, p!107), generally the Feedback
answer is ‘yes’, unless the relevant court decision ‘is uncertain or
divided’.
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A. United Kingdom
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1. Are treaties the United Kingdom (UK) has entered into part of the Activity 4.5
law in the UK?
2. Is customary international law part of the law in the UK?
3. If your answers to the above questions are different, is there any
justification for such a difference?
4. What has been the overall impact on British law of the European
Communities Act 1972 (UK) and the Human Rights Act 1998
(UK)?
5. If an English court finds that a particular Act of the British
parliament is in conflict with the European Convention on
Human Rights and Fundamental Freedoms 1950 (the ‘European
Convention’), what then happens?
1. The short answer is ‘no’, at least not unless the treaty has been Feedback
‘transformed’ by an Act of parliament (see the ‘ITC’ case).
2. The short answer is ‘yes’ (Triquet v Bath & West Rand Central
Gold Mining) as customary international law forms part of the
common law. This is provided the rule of customary international
law is clear and there is no contrary legislation, as legislation will
of course always ‘trump’ the common law.
3. The main justification appears to be the principle of parliamentary
sovereignty, although the writers of the text make a cogent
argument that this is unconvincing (see note 4, CB at p!116).
4. It is basically to bring together much more than ever before
British domestic law and international law. However, as Feldman
makes clear, British parliamentary sovereignty is still preserved,
and British Courts remain free to interpret the law as they see fit,
with the European courts jurisprudence only being persuasive and
not binding.
5. The British court does not have the power to invalidate the statute,
but can issue a declaration of incompatibility. This will alert
parliament to this situation, which then has the right to act on this
by repealing or amending the legislation, or not acting on this by
continuing to allow the statute to stand.
C. South Africa
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Activity 4.6 Is customary international law part of the South African legal system?
D. United States
Activity 4.7 Are Treaties the United States has entered into automatically part of
United States law?
The current view of the High Court of Australia is that international law
is not directly a part of Australian domestic law: Minister for
Immigration and Ethnic Affairs v Teoh (CB, pp 123-124). For
international law to become domestic law it must be made (or
transformed) into local law by one of the law making institutions of our
domestic governmental structure. In Australia, the primary institution
that makes law is parliament, however judges do make law in stating the
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What prominent pieces of Federal legislation have been enacted on the Activity 4.8
basis of this transformation principle? What gives the Federal
government the Constitutional power to enact such legislation?
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Reading 4.1 Kirby M, ‘The Australian Use of International Human Rights Norms:
From Bangalore to Balliol - a View from the Antipodes’ (1993) 16
University of NSW Law Journal 363 at 373/4
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1. What are the five Bangalore Principles Kirby mentions? Activity 4.9
2. Given the decision in Mabo, is there anything Kirby has left out?
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1 See Reicher H (ed), Australian International Law: Cases and Materials, Law
Book Co., Sydney, 1995, Chapter 2, pp 96-101, and in particular, Chow Hung
Ching v The King (1949) 77 CLR 449.
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Recently though the High Court of Australia has been more open to
international influences. It no doubt sees these influences as much more
acceptable than it did 30 years ago. One reason for this is that
Australian culture has become much more aware of and related to
international society and events. This awareness makes for a more
internationally alert society and in particular an internationally sensitive
legal profession. If international law was foreign to the Australian
culture it would not work as justification for legal reasoning: Higgins R,
Problems and Process: International Law and How We Use It Oxford
University Press, Oxford, 1994, pp 205-218.
It is because Australian culture has become globalised that Australian
lawyers are now starting to appreciate international law and particularly
human rights norms. This growth of an international culture has made it
possible for the judges to convince the community that their law making
is acceptable. In fact, international law has become a justification for
judicial law making in the weak or strong sense. Where international
law, particularly customary international law on human rights, reflects
the values of the Australian community there is strong justification for
judges transforming that law into common law. See Fitzgerald B,
‘International Human Rights and the High Court of Australia’ (1994) 1
James Cook University Law Review 78; Bayefsky A & Fitzpatrick J,
‘International Human Rights in United States Courts: A Comparative
Perspective’ (1992) 14 Michigan Journal of International Law 1;
Brennan J in Mabo supra at 42; Gaudron J In Teoh supra at 375-6;
Gaudron J in Kruger supra; Kirby J in Newcrest Mining (WA) Ltd v
Commonwealth (1997).
In summary then it might be said that in the future Australian judges
will be more willing to justify their legal reasoning and law making on
principles of international law as Australian society has become in large
part an international culture.
6. Topic summary
Theories
The idea of ‘transformation’ requires that before international law can
have any effect within the domestic system, it must be ‘transformed’
into domestic law. Normally this transformation is achieved through
legislation or judicial decision. This theory is in the main associated
with a ‘dualist’ conception of the relationship between international law
and domestic law – the two systems of law are separate and operate on
different planes.
The idea of ‘incorporation’ generally supposes that international law
and domestic law are simply two components of a single entity called
‘law’; domestic and international versions are merely particular
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7. Further reading
Dixon M, Textbook on International Law, 5th ed, Oxford University
Press, 2005, Chapter 4.
Collier J, ‘Is International Law Really Part of the Law of England?’
(1989) 38 ICLQ 924.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273.
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142
ALR 331.
Kruger v Commonwealth (1997) (regarding international law) 146 ALR
126.
Horta v Commonwealth (1994) 123 ALR 1.
Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42
Kirby J only.
Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529.
Dietrich v The Queen (1992) 177 CLR 292.
Nulyarimma v Thompson (1999) FCA 1192.
Fitzgerald BF, “Horta v Commonwealth: A case in the High Court of
Australia Concerning the Validity of the Timor Gap Treaty and its
Domestic Implementation” (1995) 44 International and
Comparative Law Quarterly 643.
Fitzgerald BF “International Human Rights and the High Court of
Australia” (1994) (1) James Cook University Law Review 78.
Horrigan and Fitzgerald “International and Transnational Influences on
Law and Policy Affecting Government” in Horrigan (ed)
Government Law and Policy (1998) 1.
Doyle J & Wells B, ‘How Far Can the Common Law Go Towards
Protecting Human Rights?’ in Alston P (ed), Towards an Australian
Bill of Rights, Human Rights and Equal Opportunity Commission &
Centre for International and Public Law, 1994, pp 107-122.
Kirby M, ‘The Role of the Judge in Advancing Human Rights by
Reference to International Norms’ (1988) 62 Australian Law
Journal 514.
Kirby M, ‘The Role of International Standards in Australian Courts’, in
Alston P & Chiam M (eds), Treaty-Making and Australia:
Globalisation versus Sovereignty?, Federation Press, 1995.
Mason A, ‘International Law as a Source of Domestic Law’, Chapter 7
in Opeskin B & Rothwell D (eds), International Law and
Australian Federalism, Melbourne University Press, 1997.
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