SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2010 -

• Citation: (2011) 23 SAcLJ 1
• Author: HE Hisashi OWADA President, International Court of Justice.
• Published date: 01 December 2011
• Date: 01 December 2011

I. Introduction

1 The traditional international system based on the Westphalian legal order is undergoing a major transformation. Many of its characteristic aspects, as a system of governance for the maintenance of global public order, are facing serious challenges from a confluence of factors. In particular, the advent of globalisation within the world community, which has had the effect of producing one global society, is creating an increasing challenge to the existing institutional framework of international law. A globalised world requires a regulatory framework based on the concept of global public order at an international level. Such a regulatory paradigm must go beyond traditional normative structures, which were built on the principle of national partition of competence inherent in the Westphalian legal order.

2 As globalisation develops and expands, issues which used to belong to the domestic legal order are becoming the active focus of attention of international regulation as issues of common concern of the international public order, such as the protection of fundamental human rights and the question of global climate change. This trend has been noticeable in the field of interaction between separate domestic legal orders of sovereign states since the early 20th century. This is evidenced by the development in the work of the Hague Conference on Private International Law, which was established in 1893 to “work for the progressive unification of the rules of private international law”.1

3 While this solution for the harmonisation of private international law has served the societal needs of the international community up to a point, it can only be considered a sort of “half-way house”. In the present age of globalisation, it is no longer viable in meeting the societal needs of the globalised world community. In its stead, what Professor Hudson has called “international legislation”,2 ie, the quasi-legislative process through the adoption of law-making treaties in the form of multilateral conventions, is becoming prevalent. As a result, the sphere of application of the international legal order is reaching ever deeper into the domestic legal order. In this new era, a more permanent paradigm for the interaction between the international and domestic legal orders is called for.

4 In this light, I would like today to take up three areas where the dilemmas arising out of the increased interaction between this newly evolving international legal order and the traditionally formulated domestic legal order have been most pronounced. My thesis is that this recent situation is giving rise to new problems of implementation of international law in the domestic legal order. These areas are: (a) the process of incorporation of international treaties into the domestic legal order; (b) the interaction between the international and domestic legal orders relating to the implementation of Security Council resolutions; and (c) the procedures for the implementation of judgments of international courts and tribunals.

II. The place of international law in the domestic legal order

5 The place of international law in the domestic legal order has been one of the most hotly debated issues for both international and domestic lawyers. Traditionally, legal scholars have considered that there existed essentially two different approaches concerning how a municipal court could deal with relevant international legal rules: the monist school and the dualist school.

6 According to the dualist school of thought, international law and domestic (municipal) law are completely separate legal systems.3 The rationale for this theory is that international law is meant to regulate the relationships between sovereign states, whereas municipal law applies only within an individual state and regulates the relationships among individuals and between individuals and the

Government.4 Because international and domestic law are separate legal orders, domestic legislation has to be enacted to implement an international rule so that the international rule can be made applicable domestically. At this point, however, the law is applied as domestic law, not as international law.5

7 According to the monist school, by contrast, both international law and domestic law are part of a single legal structure, with “the various national systems of law being derived by way of delegation from the international legal system”.6 Because the monist school takes the position that international law and municipal law form part of the same legal order, the question arises as to which of the two is hierarchically superior. Most monists answer this question in favour of international law, although a minority assert the supremacy of municipal law in a monist paradigm.

8 Against this doctrinal background, it is crucial to examine the practice of states to see how this interaction between the international legal order and the municipal legal order has operated, and what kind of problems have arisen as a result. In the practice of most countries, general international law or customary international law is accepted as constituting part of the legal order of the domestic legal system. Thus, in the doctrine of the UK, customary international law, as a body of law commonly accepted by the civilised nations of the international community, has traditionally been regarded by its very nature as part of the law of the land. This doctrine has come to be accepted in the US, as it inherited the common law system from Great Britain at the time of its independence. Many of the countries belonging to the civil law system on the European continent also have provisions in their constitutions which declare the supremacy of international law over municipal law in their legal systems.

9 When it comes to the issue of the place of international conventional law, namely legal norms accepted by states through bilateral treaties and multilateral conventions, however, the practices of states are much more divergent. It is true that there has recently developed a discernible trend of states including a stipulation in their constitutions assigning a place for international agreements in the constitutional legal order. This trend is the result of states‘ growing awareness of the internationalisation of their wish to avoid possible conflicts between obligations emanating from the two legal orders, one

domestic and the other international - both of which derive their legal authority from the sovereign will of the State. However, the precise place of international conventional law in the domestic legal order differs from state to state. Some states, such as the US, place international treaties on an equal footing as domestic legislation, and take an approach based on the lex posterior principle, in which an international treaty (which is applicable as part of federal law under the Supremacy Clause of the Constitution of the United States of America (“US Constitution”)) will apply despite a conflicting federal or state law that already exists, if the treaty has been ratified later in time. This also means, however, that should a new law in the form of an Act of Congress be enacted in conflict with an existing international agreement, that domestic law will have superior force. A group of other countries, especially many civil law countries in Europe and Latin America - including Argentina, Belgium, France, Germany, Japan, The Netherlands and Poland - uphold the primacy of an international treaty over earlier or subsequent domestic legislation. An interesting exception is provided by the constitutional doctrine of the UK, where the conclusion of a treaty is a prerogative of the Crown, which concludes that treaty without the intervention of Parliament. A treaty must be transformed into a domestic law in order to be incorporated into the domestic legal order. Yet other countries have not codified any explicit rule as to the place of international treaties within the domestic legal order.7

10 There have been some theoretical attempts to harmonise this strict dichotomy between monism and dualism through a third approach, which might be called the co-ordination approach. Scholars who advocate this view try to argue that the difficulty of both monism and dualism is that they operate on a faulty premise that international and municipal law have a common field of operation. In reality the two systems “do not come into conflict as systems since they operate in separate spheres”.8 There can be no conflict of systems, they argue, while there “may be a conflict of obligations, an inability of the state on the domestic plane to act in the manner required by international law: the consequence of this will not be the invalidity of the internal law but the responsibility of the state on the international plane”.9

11 In my view, this co-ordination approach fails to meet the requirements of the legal realities of contemporary international life, where states have to co-operate with each other through the adoption of

“international legislation” in the form of multilateral conventions, creating a common legal order for the international community. Whatever the legal techniques they may employ, whether through the monist approach or the dualist approach, the objective is to ensure compliance with the international obligations which they have assumed by entering into international agreements, either bilateral or multilateral. From this perspective, it matters little whether what ensues from the non-compliance is a situation of state responsibility or that of the invalidity of the international act in question. The so-called “co-ordination approach” may be a clever device to avoid a theoretical inconsistency resulting from the monist doctrine or the dualist doctrine, but it does not solve the real problem that the present-day international legal order faces - ie, how to ensure compliance within a...