International and Municipal Law

The term International Law (IL) in itself implies a framework of rules and regulations, which states are either legally or morally bound by (D’Amato & Abbassi, 2006, p. 13 & p. 26, Janis & Noyes,2006, p. 3). J.L. Brierly in his classic British introduction to International Law defined the discipline “as the body of rules and principles of action which are binding upon civilized states in their relations with one another” (Janis & Noyes, p. 24).

Mark Janis, 2006, wrote about the historical background of International Law and how has it developed over time. He explained how the Romans knew of a jus gentium, a law of nations or a law “common to all men” (Janis & Noyes, p. 1). In the Seventeenth century, a Dutch jurist named Hugo Grotius in his 1625 writing “The Law of War and Peace” recognized law of nations as a set of rules that bound sovereign states, which then became the foundation of the modern discipline of the law of nations. In 1789, the English philosopher Jeremy Bentham renamed “international law”. Today, the law of nations and International Law are used interchangeably (p. 1).

There is an inherent reciprocity in International Law in a sense that for an independent state to be entitled to full benefits of sovereignty and recognition by the international community it must respect the sovereignty and the entitlements of other states (D’Amato & Abbassi, p. 17). Therefore, international law restrains the state power from threatening the sovereignty of other states; otherwise the offending state will lose its entitlements and be subject to hostilities by other countries. The international community accepted the legality of violating nation’s entitlements in order to repudiate that nation initial offense (D’Amato & Abbassi, p. 22).

Among the various sources of International Law where such rules and regulations are identified are treaties and customary laws accepted by the international community. When neither treaties nor customary laws provide a rule or able to decide on a case involving IL; then the judge may look at other sources including the general principles of law recognized by civilized nations, natural law, and jus cogens or compelling norms (Janis & Noyes, p. 128 & p. 138)

Treaties are contracts between two countries or group of countries. Each country can negotiate the terms of such contracts and either becomes a party obligated to fully carry out the terms of the agreement, or makes specific reservations, understandings or declarations. In practice, treaties have become the main source of International Law, where states are bound to the terms of the agreement and are held accountable if they violate them (D’Amato & Abbassi, pp. 24-26). Disputes are often brought before International Court of Justice (ICJ), whose opinions are not legally binding; however, it provides states with rationale to resolve their problems (Janis & Noise, pp. 27-57). Therefore, treaties are considered international contracts, similar to the domestic legal analogy of drafting a contract (Janis & Noise, p. 54). “Whatever the term used, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise” ( p. 55).

Among the main criticism to the treaty practice is that treaties never bind all states—only signatories. Moreover, treaties don’t cover every aspect of International Law, hence the need for customary law and other sources of IL. Some treaties are not self-executing, which means that a treaty cannot be enforced without an implanting legislation (D’Amato & Abbassi, p. 53). Furthermore, except for humanitarian treaties (D’Amato & Abbassi, p. 51), and in order to obtain a universal ratification; States can generally refrain from binding by certain provisions of a treaty either by declining to be a party in a treaty or submit reservations as a condition of ratifications in order to protect its domestic interests. However, in treaties covering human rights issues, states might get away with submitting reservations that violate the basic understanding of the treaty, since other states might not object to such reservations if their domestic interests are not implicated (p. 56)

On the other hand, customary law seems to have all the answers to the critics of treaties’ law—it is binding to all states even without their consent, which seems more compelling than law of treaties, and it applies to every dispute whenever a more specific treaty provision does not (D’Amato & Abbassi. p. 59). Customary law is formatted based on previous similar “incidents” or disputes and consequently draw a similar resolution or points in the same direction to obtain one (p. 60). However, developing criteria for what really constitute an incident and when it starts or ends remains a challenge (D’Amato & Abbassi, pp. 64-65). Moreover, certain facts surrounding an incident might not be available till years later, which in turn undermine the validity of the initial resolution (p. 65). Furthermore, since customary law is designed to settle disputes that had precedents in history, it is not capable of addressing non conventional threats like terrorism and WMDs (p. 66).

As Janis and Noyes explained, International Law depends on municipal law—in most instances, when legal rules are applied in practice, they are applied by municipal courts. Moreover, the incorporation of international legal rules into domestic laws is usually done by municipal law governed by the constitution (Janis & Noyes, p. 180). However, there is a debate between monists and dualists as to whether the Constitution should be used as filter to ensure that International Law conforms to national laws—nationalization of International Law (Slaughter, 1997, p.192), or should International Law be allowed to penetrate through the national legal order—denationalization of Constitutional Law (De Burca & Gerstenberg, p. 244)-creating a more universal legal order (Week 4 PDF notes, p. 1). Most governments currently adhere to the ‘dualist’ paradigm, viewing national and international legal systems as separate, each with its own power to settle the effect of any rule from the other system within its own bounds (Week 4 lecture, p. 1)


The U.S constitution gives treaties (provided that treaties are self-executing) and federal laws equal force, and they both trump states laws. The most important US constitutional law decision concerning the relationship of international law and US municipal law is Foster & Elam (J & N., p. 180). Article VI (2) of the US constitution, the Supremacy Clause: The constitution, and the laws of the US and all treaties made or shall be made, under the authority of the US shall be the supreme law of the land. Anything in the constitution or laws of any state to the contrary notwithstanding. In the Asakura v. City of Seattle case is an example of a state law being trumped up by US treaty rule. The case cited Foster & Elam for the proposition that a treaty “operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts (J. & N. p. 185).

Moreover, the U.S. Constitution also recognizes customary law and, like treaty and federal law, receives the benefits of the Supremacy Clause (Week 4 lecture, p. 4). In the Sosa v. Alvarez-Machan, the Supreme Court Justices stipulated that the US bound to receive the law of nations, in its modern state of purity and refinement (N. & J., p. 248). However, more than 95 percent of all international agreements concluded by the US are in the form of executive agreements. Over the years, Congress tried to curb presidential executive power. The President still enjoys predominant power in foreign affairs (Week 4 lecture, p. 3). Even when the Senate consents to a treaty, the Constitution gives only the President the authority to negotiate, without intrusion by the Senate, as in the case of United States v. Curtiss-Wright (J. & N., p. 211).

Despite the fact the both International Law and Municipal Law depend on each other as we previously explained, De Burca & Gerstenberg in 2006 argued that both politicians and legislators have expressed reservations about the role and function of International Law in domestic affairs. Moreover, legislators are usually skeptical about the authority and utility of International Law and how it should be given effect within domestic system (p. 243). De Burca & Gerstenberg suggested that both International and constitutional norms should be understood as “contextually competing rule-of-law rather than as conflicting legal sources vying against one another” (p. 244)

References

Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing

De Burca, G. & Gerstenberg, O. (2006, Winter). The denationalization of constitutional law. Harvard International Law Journal, 47(1), pp. 243-262.

Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing

Slaughter, A. (1997, Sep/Oct). The real new world order. Foreign Affairs, 76 (5), pp. 183-197