SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2ND SEPTEMBER 1998

Citation(1998) 10 SAcLJ 273
Date01 December 1998
Publication Date01 December 1998

THE RULE AND ROLE OF DOMESTIC LAW IN INTERNATIONAL RELATIONS

BY HONOURABLE SIR GERARD BRENNAN*

Municipal courts and municipal law deal chiefly with domestic issues. But judges and practitioners, accustomed to the application of local laws to local issues, find that the pattern of litigation is changing. As our countries move into a world of transnational trade and commerce and agreed international standards touching social, environmental and economic issues, international law has an increasing influence on the content of municipal law. In earlier times, when international law related chiefly to the affairs of sovereign States, it had comparatively little effect on municipal law. The ordinary laws governing relationships between individuals, the powers of government and prohibited conduct were not the concern of the international community.

With increasing frequency, especially in the last twenty years, the international community has sought to contain international tensions and consolidate peaceful relations by treaties setting common standards to be implemented by nation States according to their own legal systems. Municipal courts have been called on to implement a changing international legal order. Municipal courts, more than international tribunals, have become the expositors of international law.

When international law speaks to matters within the domain of municipal law, the question whether and to what extent municipal law responds must be answered by national courts and legal professions. Some legal systems, embracing the monist theory, treat international law and municipal law as parts of a single body of law, administered in accordance with an internal set of rules. Kelsen perceived international law to be the basis of the national legal order in the sense that an international legal norm defines the organs of a legitimate national government and thereby delegates the authority to create a national legal order.1 Other legal systems, Singapore and Australia among them, regard international law and municipal law as distinct. This is the theory of dualism. It distinguishes between the two systems on these: first, the subjects of municipal law are individuals while the subjects of international law are nation States. Secondly, the juridical origins of the two systems are different.2 The

common law jurisdictions find municipal law in statutes and regulations and in judicial decisions. The sources of international law are the customary law of nations, treaties, binding resolutions of the United Nations Security Council and the general principles of law recognised by the courts of civilised countries.

Whether a State embraces the monist or the dualist theory, the practical question that has to be addressed by a municipal court is whether and to what extent the provisions of international law are to be applied to the case in hand. That is not to say that municipal courts apply international law: they do not. In the judicatures of common law countries, only municipal law is applied. But the incorporation or transformation of international law into municipal law is often the means by which a State discharges its international legal obligations.

The international community has a legitimate interest in two aspects of the work of municipal courts. The first aspect relates to the implementation of the provisions of international law by the municipal legal system. That depends on the principles of municipal law that govern the adoption of international law. The second aspect relates to the revelation by court decisions of the way in which the rule of law operates in a particular society. I turn first to the principles governing the domestic application of international law.

Australian practice, I must say, in this respect substantially follows English precedent. The citation of English and Australian authority by the CJ in the recent judgment of the Court of Appeal of Singapore in Public Prosecutor v Taw Cheng Kong3 leads me to proceed on the footing that no difference will be found in this respect between the law and practice of Singapore and Anglo-Australian law and practice.

1. The common law and customary international law

Municipal law distinguishes between customary international law, embodying the practice of civilised nations as acknowledged by jurists4, and international law derived from treaties. Blackstone’s opinion5 was that the law of nations — that is, the whole of customary international law — is part of the law of the land. That principle of incorporation was adopted in the 18th century6 and was affirmed at the beginning of this century by Lord Alverstone CJ in 19057 who insisted on proof that the

proposed norm of customary international law had already been recognised and acted upon in England or was of such a nature that no civilised state would repudiate it. Then Lord Atkin, delivering the opinion of the Privy Council in Chung Chi Cheung v The King8, said:

“It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own municipal law. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the municipal law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”

This doctrine of incorporation was affirmed in later cases. In the Tin Council case in the House of Lords, Lord Oliver9 pointed out that incorporation is limited to the existing rules of international law and municipal courts have no authority “to legislate a rule into existence for the purposes of domestic law and on the basis of material that is wholly indeterminate.”

Now arguably, the Australian approach to customary international law is different. In Chow Hung Ching v The King10 Dixon J adopted the opinion of Prof. Brierly that international law “is not a part but one of the sources of English law”11. This proposition transforms rather than incorporates the international norm into the common law and would accept the authority of the court to develop the transformed international norm to meet the exigencies of each case. Whichever approach is adopted, the court must first determine whether the international norm contended for has been acted upon, or would certainly be acted upon, by the community of nations. Then it must appear that there is no statute or binding court decision inconsistent with the proposed norm.

2. Treaties and the statutes implementing them

Under the Westminster form of government, the Crown or the Executive Government has the exclusive power to enter into treaties and thereby bind the State. But the Executive Government is not the repository of legislative power and it cannot enact new law by the exercise of executive power12; new laws must be enacted by the legislature or with the

legislature’s authority13. Therefore, it has been held in Australia14 as in England:15

“that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.”

When the provisions of a treaty are enacted in the terms in which the treaty is drawn, however, the municipal court construes these terms not by reference to the municipal rules of statutory construction but by the international rules applied in the interpretation of treaties. When The Hague Rules were incorporated into the Carriage of Goods by Sea Act 1924 (UK), Lord MacMillan said:16

“It is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule have an international currency. As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that the interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation.”

Now a similar issue arose in Australia when the Racial Discrimination Act 1975 (Cth) was enacted in substantially the same terms as, and to give effect to, the International Convention on the Elimination of All Forms of Racial Discrimination. In Koowarta v Bjelke-Petersen17, I observed that:

“[w]hen Parliament chooses to implement a treaty by a statute which uses the same terms as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision of the treaty.”

The reasons for this approach are “certainty and uniformity of application”.18 Therefore, the basic rule of interpretation is to be found

in Art 31 of the Vienna Convention,19 the work of the UN International Law Commission.20

However, the interpretation of some treaty provisions may be affected by the prior history of the rule. If the treaty simply expresses a rule, especially a rule of commercial or maritime law, which has been applied by municipal courts before the treaty was entered into, the true meaning of the treaty rule may be found in judicial precedent. This has been the subject of discussion in Australia.

3. The effect of treaties on the construction of statutes generally

The proposition that the provisions of treaties are not part of municipal law unless incorporated by statute means that, under municipal law, statute prevails over treaty where there is any inconsistency between the two. Speaking for the Court of Appeal in Seow Teck Ming v Tan Ah Yeo21, Chan Sek Keong J said:

[I]t is settled law that the duty of the court is to give effect to national law and not international law if there were a real conflict between...

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