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Supranational (International) Law Lecture Notes
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English Legal System and Legal Skills, Supranational (International) Law.
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What are international legal sources?Public international law: what it is and isn’t:
Domestic law – law made by domestic legislators and courts and primarily aimed
towards the rights and obligations of individuals. (NOT, not international)
Foreign law – the law of other countries. (NOT, international but not public)
Private international law – law regulating private relationships but with a
transboundary element. (NOT, international but not public)
Public international law – the law governing the relationship between
nation states.
The sources of international law:
Art 38(1) Statute of the International Court of Justice:
a) International treaties.
b) Customary international law (general practice which is accepted as law
(Opinio juris – not written in a singular formal document but still followed,
e.g., customary to bow/curtsey to royalty).
c) General principles of law.
d) ‘Judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of
law’.
Customary international law is formed where there is an agreement between two
nations.
Opinio juris – an opinion of law or necessity.
General principles of law are accepted principles in most states of the world e.g.,
there would be no crime without law and must be followed and applied in good faith.
By referring to judicial decisions as subsidiary, it suggests that no other nation allows
judges to make/develop the law – this part of international law sources is not
necessarily shared by other states.
By referring to legal academics and case law, it aids interpretation of legislation for
the courts and is part of understanding legislation – it is also a secondary source.
Primary sources – a, b, c: Secondary sources – d.
The nature of international treaties: - most important source of
international law.
- The label does not affect the nature of the agreement.
- Agreements between two or more states (bilateral or multilateral).
- The obligatory nature is found in the international legal principle that
agreements are binding (pact sunt Servanda) – if treaties were not binding
there would be no point of acceptance.
- Rules cannot bind third parties – binds only the parties of the contract through
express terms.
Pact Sunt Servanda – agreements must be kept.
Exceptions to binding nature of treaties:
- Reservation: ‘a unilateral statement, however phrased or names, made by a
state, when signing, ratifying, accepting, approving or acceding to a treat,
whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that state’ (Art 2 Vienna
Convention on the Law of Treaties 1969). – reservations are very rare in
international treaties; it would be considered a new offer. – they also allow states to choose
which terms they comply with.
- Derogation: a statement whereby a state notifies the Council that it is
suspending certain rights under the Convention ‘in time of war or other public
emergency threatening the life of the nation’ (e.g., Art 15, European
, Convention of Human Rights). – where a state agrees to comply with rights and
override where necessary.
Summary:
International law governs relations between states.
State sovereignty is the key organising principle.
Formed primarily through treaties and custom.
Monism and dualism (and why these theories matter).
Monism:
‘Automatic incorporation’ and supremacy of international law.
e.g., (to a certain extent) Germany (Article 25 Basic Law: ‘The general rules of public
international law are an integral part of federal law. They take precedence over
statutes, and directly create rights and duties for the inhabitants of the federal
territory).
While international and domestic law are different branches, they form part of one
legal system – they are different branches of the same tree.
Where there is conflict between international and domestic law, courts will take the
international route.
Dualism:
No automatic incorporation of international law and supremacy of domestic law if the
rules conflict.
e.g., the UK.
The idea that international and domestic law are completely separate legal systems
and the domestic law is the most valid law – in the UK, international law will only
become enforceable in the country if it is put into UK legislation.
Where there is conflict between international and domestic law, courts will take the
domestic route.
The dualist approach in the UK is enforced via this case -
J.H. Raynor v Department of Trade and Industry (1989) 3 AII ER 523 –
Per Lord Oliver, at 544-545:
‘Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty
is not part of English Law unless and until it has been incorporated into the law by
legislation’.
Per Lord Templeman, at 526:
‘Except to the extent that a treaty becomes incorporated into the laws of the United
Kingdom by statute, the courts of the United Kingdom have no power to enforce
treaty rights…’
Recent pronouncements of the general rule: - reinforces the rule from the
above case.
A (FC) and others (FC) v Secretary of State for the Home Department
(2005) UKHL 71, at para 27 (Lord Bingham) –
‘a treaty, even if it is ratified by the United Kingdom, has no binding force in the
domestic law of this county unless it is given effect by statute…’
Miller v Secretary of State for Exiting the European Union (2017)
UKSC 5 –
‘Treaties between sovereign states…are binding on the United Kingdom in
international law, [but] treaties are not part of UK law and give rise to no legal
obligations in domestic law’.
- These three quotes from the three cases are enforcing the dualist approach
via an enabling statute.
Enabling statute – legislation giving rise to international law in the UK.
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