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SAINT AUGUSTINE UNIVERSITY OF TANZANIA

FACULTY OF LAW

PUBLIC INTERNATIONAL LAW 1

COURSE NOTES

ON

MODULE 5

INTERFACE BETWEEN INTERNATIONAL LAW AND

MUNICIPAL LAW.

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6.0 Introduction

The most fundamental issue in the aspect of international law is the nature between international
law and municipal law. This is brought forth by the fact that a state is an internal sovereign with
its own municipal laws but in the same time a state is a member of the international legal
community subjected to international law. In this aspect, the resolution of disputes in a state may
differ depending on the legal system prevailing in such state either common law or civil law
system. Apparently there seems no relationship between international law and municipal law.
But if examined with much extreme, then it would be seemed that there is a relationship between
both the legal orders of international law and national law. Therefore, the test to be applied as to
observe the relationship between international and national laws may be conducted in case of a
conflict occurring between the two. The situation would arise that what law shall be applicable to
the case in question Relationship between Municipal Law and International Law.

There has arisen theoretical debate in international, law in regards to the relationship between
international law and municipal law. The debate bases on the two theories of monism and
dualism. The debate bases on the practical issue of when national law and international law are
in conflict which of the two shall prevail?. In international fora, international law is supreme to
municipal law. But, that does not mean that municipal law does not have a role to play in
international law, it basically supplements international law. In the current developments, it is
evident that international laws supremacy is increasing over national laws. For example, under
Article 5 of the Federal Law on International Treaties of the Russian Federation of 1995 all
ratified treaties are considered part of Russian legal system. Also, Article 19 of the Kosovo
Constitution of 2008 provides that, upon ratification treaty law becomes part of the internal laws
of Kosovo.

Aside from a broad theoretical discussion, the relationship between international and national
law delivers very practical consequences in a given legal system. Furthermore, to some extent,
the prevailing of one over the other could give rise, in practice, to very unfavorable legal
circumstances. Hence, many times, international law and national law have varying
determinations, and, in the majority of cases, the former is considered to be more modern with
respect to human rights and issues of freedoms. Evidence shows that the primacy of international

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law over domestic law is a modern phenomenon, and is often regarded to as a benchmark of a
democratic state.

6.1 Theories

Municipal law governs the domestic aspects of government and deals with issues between
individuals, and between individuals and the administrative apparatus, while international law
focuses primarily upon the relations between states. The relationship between international law
and municipal law has been the subject of much doctrinal dispute between what is known as the
"dualist" school of thought, on the one hand, and the "monist" school of thought on the other
hand. The monists accept a unitary view of law as a whole based either on formalistic logical
grounds as espoused by Kelsen, or strong ethical concerns as argued by Lauterpacht. Thus, the
monists assentation on the primacy of international law is becoming more and more evident.

According to the dualists, the rules of the systems of international law and municipal law exist
separately and cannot purport to have an effect on, or overrule, the other; a recognition of the
fundamentally different nature of inter-state and intra-state relations and the different legal
regimes used in municipal law and international law. Being separate systems, international law
does not as such form part of the municipal law of a state. When in particular instances rules of
international law may be applicable within a state, they do so by virtue of their adoption by the
internal law of the state, and apply as part of that internal law and not as international law.
Therefore the question of the supremacy of one system of law over the other is avoided since
they share no common field of application. Each is supreme in its own sphere. As to relationship
between municipal law and international law there are many theories the most prominent one of
which may be discussed as under

a. Monism Theory:

Etymologically the term Monism is derived from the word mono, meaning one. Thus in the
concept of International law, Monism is the theory or assumption that the Municipal law and
international law legal systems form a unity. In monism international law and municipal law are
one of the same thing and in event of conflict international law prevails. According to monism
International Law and Municipal Law are two phases of one and the same thing. The former

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although directly addressed to the States as corporate bodies is as well applicable to individuals
for States are only groups of individuals. Hans Kelsen the founder of the monism theory, argues
that law ultimately regulates individuals and states and that the subject of the two systems of law
namely, International Law and Municipal Law are essentially one in as much as the former
regulates the conduct of States, while the latter of individuals. This leads to the conclusion that
both international law and municipal law tend to manifest a single conception of law.

In monism both national legal rules and international rules that a state has accepted, for example
by way of a treaty, determine whether actions are legal or illegal. In most monist states, a
distinction between international law in the form of treaties, and other international law, e.g. jus
cogens is made. International law does not need to be translated into national law. The act of
ratifying the international law immediately incorporates the law into national law. A state court
can declare a national provision invalid if it contradicts international rules because, in some
states, international law has priority. In its most pure form, monism dictates that a national law
that contradicts international law is null and void, even if it predates international law, and even
if it is the constitution.

The origin of monism is traceable to the medieval philosophical conception of the world as a
single hierarchically organised legal system. In ancient Judaism, the law was universal,
communicated to the people by God. This was equally true of the ancient Greek and Roman
philosophy of law, in which ‘law represented precepts of reason embedded in nature, the latter
being created by God and organised harmoniously with laws that have universal validity’. The
monist theory asserts that domestic and international law are two components of a single body of
knowledge called ‘Law’. Thus the main features of this theory are the unity of the international
and domestic law, the automatic incorporation of international law into domestic law, and the
supremacy of international law over domestic law in cases of conflict between the two.

Generally, it is the Constitution of States that prescribes the manner in which the international
law is automatically incorporated into the domestic law and for the primacy of international law
over domestic law. Various reasons have been given for the monist principle of primacy of
international law over domestic law.

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b. Dualism theory:

According to dualism, the systems of International Law and Municipal Law are separate and
self-contained to the extent to which rules of the one are not expressly or tacitly received into the
other system. The dualist approach views international law and municipal law as two separate
systems that exist independently from each other. In the first place they differ as regards their
sources. The sources of Municipal Law are customs grown up within the boundaries of the State
concerned and statutes enacted therein while the sources of International Law are customs grown
up within the Family of Nations and law making treaties concluded by its members.
In the second place Municipal Laws regulates relations between the individuals under the sway
of a State or between the individuals and the State while International Law regulates relations
between the member States of the Family of Nations.

In the third place they differ in their legal content, there is a difference with regard to the
content of the law. In as much as Municipal Law is a law of the sovereign over individuals while
International Law is a law between sovereign States which is arrived at an agreement among
them. Thus international is therefore a weaker law. In dualism if a national court considers
that there is conflict between municipal law and international law, then the court shall
decide basing on the national law.

Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does not exist
as law. International law has to be national law as well, or it is no law at all. If a state accepts a
treaty but does not adapt its national law in order to conform to the treaty or does not create a
national law explicitly incorporating the treaty, then it violates international law.
But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it
and judges cannot apply it. National laws that contradict it remain in force. According to dualists,
national judges never apply international law, only international law that has been translated into
national law.

Dualism is historically rooted in the doctrine of separation of powers and in the English
positivists school of the seventeenth century, which rejected the monist belief in the unity of

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domestic and international law in favor of a distinction of domestic from international law on the
basis of the sovereignty of nations. Dualists regard international law and domestic law as two
completely different systems of law.

According to Malenovsky, international and municipal law are based not only on different
jurisdictions and sanction bodies, but also on different subject matter and sources. While
international law governs the relationship between states, domestic law governs the rights and
obligations of individuals within states, and while International law originates from custom,
domestic law, is a product of legislation. Furthermore, dualists assert that while international law
is founded on the common willingness of several states, domestic law depends exclusively on the
unilateral willingness of one State. Thus, international law creates rights and duties among
States, which each individual State must determine the manner in which it complies with. The
result of this is that international human rights norms ratified by dualist states are not enforceable
until they have been incorporated or transformed into domestic law.

c. An Alternative Approach theory

The alternative approach was developed by G. Fitzmaurice. He argues that no system is superior
or inferior to the other; each operates within its own sphere as a distinct legal system. The
systems, therefore, do not come into conflict as systems but a conflict of obligations may occur
or an inability for the state on the domestic plane to act in the manner required by international
law. The consequence of this "inability" by the state is a breach of the state's international law
obligations for which it will be internationally responsible, and in respect of which if cannot
plead the condition of its domestic law by way of absolution.

6.2 Approaches for Application of International law in the Municipal law

There are two main theories that govern how international law becomes part of the national law
of a state jurisdiction. The two approaches are Transformational approach and incorporation
approach. These approaches are usually applied by states in implementing international law
within their jurisdiction. But, it should be noted that the application of Customary International
law may differ from the application of the international treaties regarding to the two approaches.

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6.2.1 Incorporation

The incorporation approach is based on the aspect that, in the absence of conflicting with the
domestic legislation of the particular state, international law should automatically become part of
the national laws without any need for an Act of parliament to be enacted for the purpose of
changing the international law into national law. But something to note is that the incorporation
approach is only dominant in customary international law and not international treaty law. The
reason behind is that the power to negotiate and enter into treaties is done by the executive not
the legislature. The most important notion of the incorporation approach is that international law
only applies within the state if it does not basically become inconsistent with the national law of
the state.

Examples of states that apply incorporation.

a. United Kingdom.

In the United Kingdom, the incorporation approach is generally followed with respect to
customary international law. This has been established by the following authorities. In the case
of TRENDTEX TRADING CORPORATION v CENTRAL BANK OF NIGERIA (1977)
QB 529 , which involved a complex contractual arrangement for Trend text to supply cement to
Nigeria. Lord Denning held as follows; that international law changes and the Courts of England
may apply such changes without the presence of any act of parliament. Also in the EX PARTE
PINOCHET CASE NO 1 OF (2000) 1 AC 61 Lord Lloyd endorsed the incorporation approach
by establishing that; the principles of international customary law forms part of the common law
in United Kingdom.

But, crimes resulting from international customary law such as aggression do not fall under the
incorporation approach in UK. In the case of KNULLER PUBLISHING AND PRINTING
LIMITED v DPP (1972) ALL ER 898, The House of Lords held that UK Courts no longer
possess the powers to create new crimes and crimes shall only be established and created by
criminal statutes. The above judicial ruling was supported in the case of R v JONES (2006) AC
435, Were Lord Hoffmann held that; when it is required to give domestic effect of the crimes
established under customary international law, the legal requirement is to legislate such crimes.

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b. The United States

In the United States the incorporation approach is applied. In the case of THE SCHOONER
EXCHANGE v MC FADDEN , 11 US (1812) 146, held that the incorporation of international
law is an additional subject to the United States constitution. This was also supported in the
supreme court in BOOS v BARRY 485 US 312 (1988) , the Supreme Court held that
international law could only be enforced to the extent that it was not incompatible with the
constitution of the United States of America, and thus the congress shall not have powers to
legislate such international law.

c. Portugal

The Republic of Portugal Constitution of 1989 under Article 8 (1)states that customary
international law shall be integral part of the national law. This means any customary
international law that shall be established by states through opinion juris and state practice shall
form part of the Portuguese legal system.

6.2.2 Transformation Approach

The principle of transformation provides that before international law has become part of the
municipal law, the state has a mandatory condition of implementing a legislation to transform the
specific international law into national law. Transformational approach is the dominant approach
used by many states in relation to treaty law. In certain Jurisdictions such as the United States, a
Treaty shall only become law if it approved by two thirds majority in the senate as per Article II
section 2 of the US Constitution of 1787.

Transformation approach may take two forms; The first is to legislate through an Act of
parliament setting out the provisions of the Treaty within the Act itself. For example in the UK
there is the International Criminal Court Act of 2001 which in effect to implement the Rome
Statute on international crimes. Also the Australian Criminal Court Act of 2002 is in place to
facilitate compliance to the Rome Statute. The second is the legislative Act acknowledging that
the international law shall become part of the domestic law. A good example is the Australian

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Geneva Conventions Act of 1957 which does not include the provisions of the Geneva
Conventions but rather it attaches them in its schedule.

6.3 Self-executing treaties

A distinction is often made between treaties which are self-executing and those which are not, in
determining the effect of a treaty in domestic law. A self-executing treaty is one ‘which of its
own force furnishes a rule of municipal law for the guidance of municipal courts in deciding
cases or which ‘’can be carried into effect by administrative authorities, or which create a rule
for the courts, or more broadly, those which can be implemented by the executive branch itself
without recourse to parliamentary action. The concept was created by the former United States
Chief Justice Marshall were he stated, A treaty is in its nature a contract between two nations,
not a legislative act. It does not generally effect, of itself, the object to be accomplished,
especially so far as its operation is infra-territorial; but is carried into execution by the sovereign
power of the respective powers to the instrument

The basic question is at which point of time does a treaty. The fact that it is up to domestic courts
to determine whether a treaty is self-executing. But no uniform standard is applied by states. In
general, courts have looked at the intention of State Parties when drafting the treaty. In SEI
FUJII V CALIFORNIA (1952) 242, it was stated that ‘in order for a treaty provision to be
operative without the aid of implementing legislation, and to have the effect of a statue, it must
appear that the framers of the treaty intended to prescribe a rule that standing alone, would be
enforceable in the courts’. Also other factors considered in SEI FUJI case include whether the
treaty indicates that implementing legislation is necessary, the subject matter of the treaty, and
whether the treaty creates negative obligations.

6.4 Place of municipal law in international law

The breach of international law cannot be justified by reference to states own municipal law.
Therefore, a state cannot behave in a manner that is contrary to international law on the ground
that the conduct is permissible under the national laws. This principle is established by Article 27
of the Vienne Conventions on the laws of Treaty of 1969, a party may not invoke the provisions
of its internal law as justification for its failure to perform a treaty. Thus, once a state has

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consented and signified to be a signatory of a treaty and incorporated thereof, the party cannot
afterwards breach such treaty. In this perspective international law is supreme in the eyes of
international courts, tribunals and arbitral bodies.

This can be evidenced in the case of GRECO-BULGARIAN COMMUNITIES CASE

(Advisory opinion) (1930) PCIJ Series B No 17; this case involved the Convention between
Greece and Bulgaria after the First World War. The Convention dealt with the reciprocal
immigration of persecuted minorities between the two states. One of the basic question that arose
in this case was; in the presence of conflict between the application of the convention and the
any of the national laws of either Greece or Bulgaria which provision would be preferred. The
PCIJ ruled in favor of the supremacy of International law by providing that; It is a generally
acceptable principle of international law that in the relations powers who are contracting
parties to a treaty, the provisions of the Municipal law cannot prevail over the treaty

The national laws may be applied in certain circumstances in international law. In the case of
UNITED STATES of AMERICA v ITALY (1989), the ICJ rep p.15, the ICJ established
that, an act being illegal under national laws does not mean that it is in breach of international
law. The supremacy of International laws over national laws in the international perspective
does not mean that the provisions of the national laws are either irrelevant or unnecessary. On
the contrary, the role of internal legal rules is important in determining certain matters of internal
significance. The application of national laws take course when there is an area were
international law is non satisfactory or non existing.

a. The use of national laws by international courts or tribunals to resolve disputes.

In a number of cases, issues have come before the courts for which there exists no relevant or
applicable legal principle at the international level. In these circumstances the courts have shown
a willingness to borrow relevant national law concepts to apply within the international sphere.
The Authority for courts to use national laws to resolve disputes is established under the ICJ
Statute of 1945 under Article 38 (1) c, which provides the general principles of the law
recognized by civilized nations shall be used to solve disputes between states before the ICJ.

The general principles are those borrowed from the domestic legal systems of the states. In the
Barcelona Traction Case ( BELGIUM v SPAIN) (1970) ICJ Rep 3, the Belgian government

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sought reparations for damages from the Spanish government caused to Belgian Nationals who
were shareholders in the Canadian company (Barcelona Traction , light and power company
LTD) as the company carried its operations in Spain. The court made the following assentation
in its ruling. That, if the ICJ was to decide the case in disregard to the municipal law, it would
invite serious legal difficulties. It would lose touch with reality as there would be no
corresponding international law that the court could apply or use.

Also International Arbitral Tribunals have been applying national laws to resolve disputes
between states. For example, in Trail Smelter Arbitral Case (UNITED STATES OF
AMERICA v CANADA) (1941) 3 RIAA, the United States had bought an action against
Canada for alleged air pollution caused by a smelter operated in Canada. The arbitral tribunal
stated that; No case of air pollution has been dealt with an international tribunal has been
brought to the attention of the Tribunal nor does the tribunal know of any such case. There are
however, as regards to water pollution and air pollution, certain decisions made by the US
Supreme Court which may legitimately be taken as a guide in this field of international law.

But it is advisable that before invoking national laws in international disputes there should be a
provision in the international convention in question allowing for that. This was established in
the case of The EXCHANGE OF THE GREEK AND TURKISH POPULATION CASE
(1925) PCIJ Series B No 10. In this case the PCIJ was sought to give an advisory opinion on
the interpretation of the term “established” as set out in the Greco Turkish Convention, as to
which persons are deemed established and which persons are deemed not to be established on the
basis of compulsory exchange. The Republic of Turkey made a submission that the interpretation
should also refer the national laws of the parties in regards to the term established. In its
provision the convention did not provide for the reference to national laws on the matter. The
PICJ held that; there is no indication that the authors of the Convention, when adopting the term
established, had in mind the reference to be made to national laws of the parties in case of
controversy. Therefore, the convention is self-contained and that interpretation of the term
established should be used basing on its natural meaning as provided by the convention.

But, the international courts or tribunals have no powers to declare that the national laws are
invalid. In the case of Interpretation of the Statute of Memel Territory (1932) PCIJ Series A
No 49, The Governor of Memel had dissolved his chamber of representatives contrary to the

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Memel Territory Treaty. The PCIJ held that the act by the Governor in dissolving the Chamber
was invalid in regards to the Treaty and that it was of no effect in the municipal law as it did not
contradict the national laws.

b. Use of National laws to resolve a state’s position on a question of international law.

Another way in which national laws as a place in international is to ascertain a state’s legal
position on a given issue. In the Anglo Iranian oil case (UNITED KINGDOM v IRAN) 1952
ICJ Rep 93; a conflict arose between the Iranian government, which sought to nationalize its oil
industry. The Anglo Iranian oil Company argued that the nationalization of the oil company
breached an existing treaty on investment. The ICJ in deciding the case, the ICJ used the Iranian
national laws as an evidence to determine Iran’s position on the matter of nationalization. The
ICJ held that; The Court is unable to see why it should be prevented from taking into account the
national law of Iran as a piece of evidence into consideration in determining the dispute.

c. Use of National laws to ascertain whether international obligations are adhered.

Also national laws may be used to establish whether a state is abiding to the international law
obligations. This was evidenced in the case of CERTAIN GERMANY INTEREST IN
POLISH UPPER SILESIA CASE ( 1925) PCIJ SERIES A NO 7. In this case there was an
allegation by Germany that Poland had illegally taken over a German Nitrate factory based in
Chorzow and also had appropriated agricultural property owned by the factory. Germany argued
that the polish national laws breached the Geneva Conventions in matters of expropriation of
property. The PCIJ held that, nothing shall prevent the court from giving judgement basing on
the polish national law so as to ascertain whether or not Poland is acting in conformity with the
Geneva Convention and a number of breaches have thereafter been determined.

6.5 Place of International law in National law.

In the current era of globalization in the world, the role of international law is very important. In
many states of the world for international law to become operative within their states, such
international rules must be implemented into the national law of a state.

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6.7 The Law and Practice in Tanzania

The East African countries, forming part of the British Commonwealth, lean towards dualism as
will be further elaborated. Under the current constitutional arrangement, Tanzania is a dualist
state, meaning for international treaties to acquire the force of law or become legally enforceable
in a court of law, mere ratification of the treaty in question is not enough. This would be enough
if Tanzania was in state. Tanzania is a ‘dualist’ system for the purposes of international law.
International instruments require enabling legislation in order to apply domestically (create rights
and liabilities actionable in domestic law). International treaty provisions do not take precedence
over national laws. The Minister of Justice and the Attorney General are distinct offices, with the
second having more traditional constitutional functions, and directing public prosecutions

through the Office of the Public Prosecutor.

Unlike Civil law countries where ratified international treaties directly forms a direct part of its
municipal law countries in the common law tradition require further incorporation of these
international documents into their domestic law through legislation. Tanzania is a dualist country
which entails that international law and municipal law are regarded as two separate systems of
law, regulating different subject-matters. They are mutually exclusive, and the former has no
effect on the latter unless and until incorporation takes place through domestic legislation.21

Indeed, it is only when a human rights instrument and its provisions have become part and parcel
of domestic law that national courts and quasi-judicial bodies will be able to apply them to cases
brought before them by private individuals or organizations. The explanation for this lies in the
British constitutional tradition. The general rule is that a state which has broken a rule of
international law cannot justify itself by referring to its municipal law; otherwise international
law would be evaded by passing appropriate domestic legislation.6 Article 27 of the Vienna
Convention on the Law of Treaties, 1969, is very clear about this. Under the principle of pacta
sunt servanda, a state is under the duty to honor its international obligations even if it means
changing its municipal law. This view has been applied in various international cases. The
British in the Alabama Claims Arbitration,7 sought to rely on lack of domestic legislation to
avoid liability. Their defence was defeated on the ground that the British government could not

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justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action
it possessed. There is a general duty to bring municipal law into conformity with obligations
under international law. As decided in the Exchange of Greek and Turkish Populations Case8 a
state which has contracted valid international obligations is bound to make in its legislation such
modifications as may be necessary to ensure the fulfilment of the obligations undertaken. If it
does not do so, a state cannot rely on her own legislation to limit the scope of her international
obligations.9 It is a generally accepted principle of international law that in relations between
states who are contracting parties to a treaty, the provisions of municipal law cannot prevail over
those of the treaty;10 even if that municipal law is the state's own

Following this tradition international law may be incorporated into the legal system through two
different ways: directly through incorporation or indirectly through a process of reception or
transformation. Reception or transformation takes place if the provisions of an international
agreement are reflected in parts of national legislation whereas incorporation entails the
wholesale enactment as part of domestic legislation of an international agreement.24

In Tanzania, the power to enter into treaties is entrusted completely to the executive branch of
the government. The legislature plays no part in the treaty-making process. Consequently, if
treaties were to become part of the law in Tanzania without legislative endorsement, wide law-
making powers would be conferred on the executive25, and that is why by Act 20 of 1992, the
National Assembly26 was vested with power to „deliberate upon and ratify all treaties and
agreements to which the URT is a party and the provisions of which require ratification‟. Article
63 of the Constitution of the URT also gives the National Assembly the power to „enact
legislation where implementation of an international treaty requires legislation‟ Article 63 (3) (d
& e) stipulate that; For the purpose of discharging its functions the National Assembly may; (d)
enact law where implementation requires legislation; (e) deliberate upon and ratify all treaties
and agreements to which the United Republic is a party and the provisions of which require
ratification.27 Thus the power to ratify treaties is with the legislature, the executive just signs.

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Ratification of International Human Rights Treaties - Tanzania

Type of
deposit
Date of deposit
Agreement on the Importation of Educational, Scientific and Cultural Materials, with Annexes
26/03/1963 Accession
A to E and Protocol annexed. Florence, 17 June 1950.
Convention for the Protection of Cultural Property in the Event of Armed Conflict with
23/09/1971 Accession
Regulations for the Execution of the Convention. The Hague, 14 May 1954.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer
02/08/1977 Ratification
of Ownership of Cultural Property. Paris, 14 November 1970.
Convention concerning the Protection of the World Cultural and Natural Heritage. Paris, 16
02/08/1977 Ratification
November 1972.
Convention against Discrimination in Education. Paris, 14 December 1960. 03/01/1979 Ratification
Regional Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and other
12/07/1983 Ratification
Academic Qualifications in Higher Education in the African States. Arusha, 5 December 1981.
Convention on Wetlands of International Importance especially as Waterfowl Habitat. Ramsar,
13/04/2000 Accession
2 February 1971.
Convention for the Safeguarding of the Intangible Cultural Heritage. Paris, 17 October 2003. 18/10/2011 Ratification
Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Paris, 20
18/10/2011 Ratification
October 2005
International Convention against Doping in Sport. Paris, 19 October 2005 29/08/2017 Ratification

Signature

Ratification

Accession

Succession

Entry into Force

International Covenant on Economic, Social and Cultural Rights

11 Jun 1976

International Covenant on Civil and Political Rights

11 Jun 1976

Optional Protocol to the International Covenant on Civil and Political Rights

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Not signed

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the
death penalty

Not signed

International Convention on the Elimination of All Forms of Racial Discrimination

27 Oct 1972

Women's Human Rights

Convention on the Elimination of All Forms of Discrimination against Women

17 Jul 1980

20 Aug 1985

Optional Protocol to the Convention on the Elimination of Discrimination against Women

Not signed

United Nations Convention against Transnational Organized Crime

13 Dec 2000

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime Preamble, supplementing the United Nations Convention against
Transnational Organized Crime

13 Dec 2000

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against
Transnational Organized Crime

13 Dec 2000

Slavery and Slavery-Like Practices

Signature

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Ratification

Accession

Succession

Entry into Force

Slavery Convention

Not signed

Protocol amending the Slavery Convention

Not signed

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

28 Nov 1962

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

Not signed

Protection from Torture, Ill-Treatment and Disappearance

Signature

Ratification

Accession

Succession

Entry into Force

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Not signed

Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Not signed

Protocol No. 2 to the European Convention for the Prevention of Torture and inhuman or Degrading Treatment of Punishment

Not signed

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Not signed

Rights of the Child

Signature

Ratification

Accession

Succession

Entry into Force

Convention on the Rights of the Child

1 Jun 1990

10 Jun 1991

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts

11 Nov 2004

Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour

12 Sep 2001

Freedom of Association

Signature

Ratification

Accession

Succession

Entry into Force

Freedom of Association and Protection of the Right to Organise Convention

18 Apr 2000

Right to Organise and Collective Bargaining Convention

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30 Jan 1962

Employment and Forced Labour

Signature

Ratification

Accession

Succession

Entry into Force

Convention concerning Forced or Compulsory Labour

30 Jan 1962

Equal Remuneration Convention

26 Feb 2002

Abolition of Forced Labour Convention

30 Jan 1962

Discrimination (Employment and Occupation) Convention

26 Feb 2002

Employment Policy Convention

Not signed

Convention concerning Occupational Safety and Health and the Working Environment

Not signed

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Not signed

Education

Signature

Ratification

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Accession

Succession

Entry into Force

Convention against Discrimination in Education

3 Jan 1979

Refugees and Asylum

Signature

Ratification

Accession

Succession

Entry into Force

Convention relating to the Status of Refugees

12 May 1964

Protocol Relating to the Status of Refugees

4 Sep 1968

Nationality, Statelessness, and the Rights of Aliens

Signature

Ratification

Accession

Succession

Entry into Force

Convention on the Reduction of Statelessness

Not signed

Convention relating to the Status of Stateless Persons

Not signed

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War Crimes and Crimes Against Humanity, Genocide, and Terrorism

Signature

Ratification

Accession

Succession

Entry into Force

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

Not signed

Convention on the Prevention and Punishment of the Crime of Genocide

5 Apr 1984

Rome Statute of the International Criminal Court

29 Dec 2000

20 Aug 2002

Law of Armed Conflict

Signature

Ratification

Accession

Succession

Entry into Force

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field

12 Dec 1962 (rat/acced)

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea

12 Dec 1962 (rat/acced)

Geneva Convention relative to the Treatment of Prisoners of War

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12 Dec 1962 (rat/acced)

Geneva Convention relative to the Protection of Civilian Persons in Time of War

12 Dec 1962 (rat/acced)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I)

15 Feb 1983 (rat/acced)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-
International Armed Conflicts (Protocol II)

15 Feb 1983 (rat/acced)

Terrorism and Human Rights

Signature

Ratification

Accession

Succession

Entry into Force

International Convention Against the Taking of Hostages

22 Jan 2003

International Convention for the Suppression of Terrorist Bombing

22 Jan 2003

International Convention for the Suppression of the Financing of Terrorism

22 Jan 2003

International Convention for the Suppression of Unlawful Seizure of Aircraft

9 Aug 1983

International Convention on the Prevention and Punishment of Crimes Against International Protected Persons

22 Jan 2003

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U.N. Activities and Employees

Signature

Ratification

Accession

Succession

Entry into Force

Convention on the Privileges and Immunities of the United Nations

29 Oct 1962

Convention on the Safety of United Nations and Associated Personnel

Not signed

Regional Conventions

Signature

Ratification

Accession

Succession

Entry into Force

[European] Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No.2 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No.3 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

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Not signed

Protocol No.4 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No.5 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No.6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No.7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No. 8 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No. 9 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No. 10 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No. 11 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

Protocol No. 12 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

Not signed

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Not signed

Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Not signed

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Protocol No. 2 to the European Convention for the Prevention of Torture and inhuman or Degrading Treatment of Punishment

Not signed

African Regional Conventions

Signature

Ratification

Accession

Succession

Entry into Force

African [Banjul] Charter on Human and Peoples' Rights *

31 May 1982

18 Feb 1984

Convention Governing the Specific Aspects of Refugee Problems in

Africa *

10 Sep 1969

10 Jan 1975

Protocol to the African Charter on Human and Peoples' Rights on the

Rights of Women in Africa *

5 Nov 2003

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Protocol to the African Charter on Human and Peoples' Rights on the

Establishment of an African Court on Human and Peoples' Rights *

9 Jun 1998

African Charter on the Rights and Welfare of the Child *

23 Oct 1998

16 Mar 2003

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Transformation Theory:

It is settled by the leading English and American decisions that International Law forms part of
the municipal law of those countries. The United States has unambiguously applied the doctrine
that International Law is part of the law of the land.
All international conventions ratified by the USA and such customary International Law as has
received the assent of the United States are binding upon American Courts even if they may be
contrary to the statutory provisions.
There is a presumption in cases of conflict that the United States Congress did not intend to
overrule International Law.

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With regard to the applicability of customary international law in the UK, it is an established
principle that customary rules are admissible and enforceable in the English courts provided that
they do not contravene an Act of Parliament or judicial authority.[1]
The legal position dates back to the eighteenth century, when the Court of Kings Bench
described the law of nations as an essential part of English law.[2] Before the issue of
enforceability can be considered the courts have to establish the existence of the particular
customary rule, and the scope of its effect in municipal law.
The latter requirement clearly evidences the subsequent invasion of the dualistic approach into a
sphere which generally rests upon monistic views. If a customary principle is inconsistent with a
statutory[3] or common law[4] rule, it will not be applied. However, as Lord Denning MR
pointed out,[5] a customary international principle can override a previous judicial decision
when said decision is based on an old rule of international law. He further stressed that the
doctrine of incorporation is an effective principle of English law, on the basis that the courts
have previously recognised changes in the rules of international law without the need of an
enabling Act of Parliament.
In order for a customary international principle to be invoked as part of English law there must
be evidence demonstrating the assent to incorporate it, or the principle in question must be jus
cogens. It is suggested[6] that, since 1876, the doctrine of incorporation applies only where
customary law has become part of English law either by an Act of Parliament, judicial authority
or by established usage. This is evidenced by examining the judgment of Cockburn CJ.[7] After
considering the provisions of English law, he seeks to ascertain whether there is a rule in
international law that states otherwise. Assuming the existence of said rule, it is then incumbent
on the court to seek evidence of British assent to the relevant rule of international law. However,
academic opinion suggests that Cockburn’s judgment is not a diversion from the doctrine of
incorporation. It merely stresses upon finding existing evidence of assent of the relevant
international provision when the issue affects the liberty of persons.[8]

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Generally, the courts pay due regard to the existence of international doctrines. However, in
order for a customary international principle to be invoked as part of English law there must be
evidence demonstrating the assent to incorporate it, or the principle in question must be jus
cogens.[9] This position was affirmed by Atkin LJ in two significant decisions[10] in which he
stressed the importance of seeking existing evidence of implementation. In his view, there is no
external power that imposes the rules of international law upon English law. As such, an
international provision has no validity unless it has been incorporated into domestic law via one
of the aforementioned tools.
However, this does not connote that the courts will not consider a novel international provision
that has never been brought to the attention of the legislature or judiciary. In that regard,
according to Atkin, the court should ascertain the nature of the rule and, having established the
rule, they will incorporate it into domestic law provided it does not contradict established case
law or enacted statute.

By examining Atkin’s ratio, one can conclude that the courts follow a hybrid mono-dualistic
approach. On one hand, they recognise the existence of international customary laws and are
prepared to incorporate them in municipal law. On the other hand, they treat the doctrine of
incorporation as subordinate to the doctrines of parliamentary sovereignty and stare decisis.
In contrast, with regard to the position of international treaties in English law, the approach is
unambiguously dualistic. Treaties are only implemented in English law if Parliament has passed
an Act to that effect.[11] In that regard, the doctrine of parliamentary sovereignty[12] is clearly
overwhelming. In cases where a treaty provision is inconsistent with an Act of Parliament,
notwithstanding the fact that the treaty may be the preceding statutory instrument, the court shall
follow the provisions of the English legislation.[13]
Treaties are only implemented in English law if Parliament has passed an Act to that effect. This
is treated as a principle of constitutional law and not a rule of construction. This distinction is an
important one. In situations where Parliament passes legislation seeking to implement an
international treaty, the courts will not apply the concept of parliamentary sovereignty as a rule
of construction, since this would distort the primary purpose of enacting the legislation. Instead,
the courts apply as a rule of construction the presumption that Parliament intended to fulfil its
international obligations.[14] This is exhibited in situations where a provision in the domestic
legislation is ambiguous.

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However, if the provision is clear, the courts will not refer to the text in the international
instrument.[15] This is on the basis that parliamentary sovereignty extends to breaking treaties,
in which case the party in detriment shall seek recourse in the legislature and not the
judiciary.[16] In order to resort to international legislation, the terms of the domestic legislation
must be subject to more than one interpretation, and there must be peremptory extrinsic evidence
of an intention to enact the international legislation in question.[17]
However, there is no need for the English statute to expressly grant permission to refer to the
international legislation, as this would create the perverse presumption that Parliament intended
to break an international convention. It is also important to note that the party relying on the
international provision has the burden of adducing evidence of the intention to enact the
rule.[18] Even if there is no ambiguity in the domestic provision, the court may refer to the text
of the international legislation in order to provide context.[19] For example, when there are
discrepancies between the English text in the domestic statute and the foreign text in the
convention, the courts would apply the latter since Parliament had intended to give effect to an
exact translation of the official language recognised by the convention.[20]
Although in relation to the position of treaties and conventions in English law the courts
manifestly follow a dualistic approach, this does not preclude them from referring to
unincorporated conventions to resolve ambiguities in domestic law when the issue affects human
rights.[21] It follows that the court can refer to an international statutory instrument, such as the
European Convention on Human Rights, in order to resolve an ambiguity in domestic primary or
enacting legislation,[22] examine the principles upon which the courts should act in exercising
discretion,[23] or resolve an uncertainty in common law.[24]
The court can also refer to conventions in order to determine the intention of Parliament behind
enacting domestic legislation, when said intention is particularly relevant to the outcome of the
case.[25] Even if the common law is certain, the courts would still consider whether there has
been a breach of the convention.[26] However, the courts cannot use a provision in a convention
for the purposes of deciding the authority of the executive to take a particular action, when said
authority is clearly expressed by the domestic legislation. As such, the courts do not apply a
presumption that Parliament had the intention to subject the authority to the limitation that it
should be exercised consistently with the terms of a convention.[27]

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However, there is a different position with regard to European Union legislation, due to the
effect of the European Communities Act 1972.[28] As a consequence, the dominant and
overwhelming effect of the doctrine of parliamentary sovereignty has been effectively
limited.[29] This is demonstrated by the decision in Factortame (No. 2)[30] where the House of
Lords, following a reference to the European Court of Justice, stated that the courts have
jurisdiction to override national legislation when necessary to grant interim relief in protection of
rights conferred under EU law. This rule lies on the basis that Parliament, when passing the 1972
Act, voluntarily limited their sovereignty for the economic benefit of joining the union. The
courts cannot use a provision in a convention for the purposes of deciding the authority of the
executive to take a particular action, when said authority is clearly expressed by the domestic
legislation.
Thus, it is incumbent on a domestic court to override any municipal law which does not conform
to a directly enforceable[31] rule of EU law.

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• Tab title
• Tab title
[1] This is known as the doctrine of automatic incorporation –
S.S. Lotus (France v Turkey), 1927 P.C.I.J. (ser. A) No. 10, per Lord Finlay at p.54
[2] Per Lord Mansfield in Triquet v Bath [1746] 97 ER 936; Buvot v Barbuit (1737) Cas.
[Link] 281
[3] Mortensen v Peters (1906) 8 F. (JC) 93 (Scotland: High Ct. of Justiciary); Polities v The
Commonwealth (1945), 70 CLR 60 (High Ct. of Australia)
[4] Chung Chi Cheung v The King [1939] AC 160,PC
[5] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529, CA at 554
[6] I, Brownlie; Principles of Public International Law (7th edn; Oxford University Press,
Oxford, 2008) p.42
[7] Regina v Keyn(1876) 2 Ex D 63, at 173-193 and 202-203
[8] Halsbury’s Laws of England, 4th edn., xviii, para. 1403
[9] West Rand Central Gold Mining Co. v The King [1905] 2 KB 391, per Lord Alverston CJ

[10] Commercial and Estates Co. of Egypt v Board of Trade [1925] 1 KB 271;Chung Chi
Cheung v The King [1939] AC 160 at 167-168
[11] I. Brownlie; Principles of Public International Law (7th edn; Oxford University Press,
Oxford, 2008) p.45 – this rule does not apply to treaties relating to the conduct of war or treaties
of cession.
[12] The doctrine is explained by AV Dicey in Introduction to the Study of the Law of the
Constitution (Macmillan and Co, London, 1902)
[13] IRC v Collco Dealings Ltd [1962] AC 1
[14] Salomon v Commissioners of Customs and Excise [1967] 2 QB 116,CA per Lord Denning
MR at 141
[15] Ellerman Lines v Murray [1931] AC 126 per Lord Tomlin at 147
[16] Salomon v Commissioners of Customs and Excise (supra) per Diplock LJ at 142
[17] Salomon v Commissioners and Excise (supra) per Diplock LJ at 143,144
[18] Per Lord Oliver in International Tin Council (J.H. Rayner (Mincing Lane) Ltd v DTI [1990]
2 AC 418
[19]Wilson, Smithett and Cope Ltd v Terruzzi [1976] 1 All ER 817 – the court referred to Article

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 [FRANCISCO] TOPIC SIX

VIII, s 2(b) of the Bretton Woods Fund Agreement for the establishment of the International
Monetary Fund incorporated by The Bretton Woods Agreement Order in Council, 1946 ((SR &
O) 1946 No 36 on the issue whether the words in S.2(b) ‘exchange contracts’ connoted contracts
of exchange of foreign currency only.
[20] Corocraft Ltd v Pan American Airways Inc. [1969] 1 QB 616
[21] Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011, HL per Lord
Keith of Kinkel at 1020 approving the judgment of Balcombe LJ in the Court of Appeal [1992]
3 All ER 65 at 76, 77
[22] R v Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696, HL per
Lord Bridge of Harwich at 747-748 and Lord Roskill at 749 – 750
[23] Attorney General v Guardian Newspaper ltd [1987] 1 WLR 100, CA, per Lord Templeman
at 103
[24] AG v Guardian Newspaper Ltd (No2) [1990] 1AC 109 – referring to Article 10 ECHR in
considering the extent of the duty of confidence
[25] Waddington v Miah [1974] 2 All ER 377, HL per Lord Reid at 379
[26] R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, CA
per Watkins LJ at 499
[27] R v Secretary of State for the Home Department, ex parte Brind [1990] 1 All ER 469, CA
per Lord Donaldson of Lymington MR at 477-478 and Ralph Gibson LJ at 484-486
[28] Per s 2(4) all UK legislation shall have effect subject to directly applicable EU laws
[29] M. Dixon and R. McCorquodale; Cases & Materials on International law (4th edn; Oxford
University Press, Oxford, 2003) p.122
[30] Factortame Ltd v Secretary of State for Transport (No.2) [1991] 1 All ER 70,HL per Lord
Bridge of Harwich at 106-108
[31] Note that the term ‘directly enforceable’ by definition excludes Directives since they require
implementation in domestic law
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