International law before municipal courts
36
The problem of the role of international law within the municipal law
system is, however, rather more complicated than the position discussed
above, and there have been a number of different approaches to it. States
are, of course, under a general obligation to act in conformity with the
rules of international law and will bear responsibility for breaches of it,
whether committed by the legislative, executive or judicial organs and
irrespective of domestic law.
37
Further, international treaties may impose
requirements of domestic legislation upon states parties,
38
while binding
Security Council resolutions may similarly require that states take par-
ticular action within their jurisdictions.
39
There is indeed a clear trend
towards the increasing penetration of international legal rules within do-
mestic systems coupled with the exercise of an ever-wider jurisdiction
with regard to matters having an international dimension by domestic
courts. This has led to a blurring of the distinction between the two previ-
ously maintained autonomous zones of international and domestic law, a
re-evaluation of the role of international legal rules and a greater prepared-
ness by domestic tribunals to analyse the actions of their governments in
the light of international law.
40
Further, domestic courts may often have to
determine the meaning of an international rule that is relevant for a case
before them
41
or to seek to resolve conflicts between international rules,
36
See e.g. Morgenstern, ‘Judicial Practice’, pp. 48–66, and Conforti,
International Law.
See
also H. Mosler, ‘L’Application du Droit International Public par les Tribunaux Nationaux’,
91 HR, 1957 I, p. 619; W. Wenger, ‘R´eflexions sur l’Application du Droit International
Public par les Tribunaux Internes’, 72
Revue G´en´erale de Droit International Public
, 1968,
p. 921; E. Benveniste, ‘Judges and Foreign Affairs: A Comment on the Institut de Droit
International’s Resolution on “The Activities of National Courts and the International
Relations of their State”’, 5 EJIL, 1994, p. 423.
37
See e.g. the
Exchange of Greek and Turkish Populations
case, PCIJ, Series B, No. 10, p. 20,
and the
Finnish Ships Arbitration
, 3 RIAA, p. 1484. See further below, chapter 14.
38
See e.g. as to requirements imposed by anti-terrorist conventions, below, chapter 12,
p. 673. See also the decision of Trial Chamber II in the
Furundˇzija
case, 121 ILR, pp. 218,
248–9.
39
See as to the effect of counter-terrorism and weapons of mass destruction proliferation
measures taken by the Security Council, below chapter 22, pp. 1208, 1210 and 1240.
40
See e.g. Shany,
Regulating Jurisdictional Relations
; A. Nollkaemper, ‘Internationally Wrong-
ful Acts in Domestic Courts’, 101 AJIL, 2007, p. 760, and
New Perspectives on the Divide
Between National and International Law
(eds. A. Nollkaemper and J. E. Nijman), Oxford,
2007. See also Conforti,
International Law
.
41
For example, the concept of jurisdiction as laid down in the European Convention on
Human Rights: see
Al-Skeini
v
. Secretary of State for Defence
[2007] UKHL 26; 133 ILR,
p. 693.
i n t e r nat i o na l l aw a n d m u n i c i pa l l aw
139
such as that between state immunity and the prohibition of torture
42
and
that between treaty rules of human rights and binding Security Council
resolutions.
43
In this section, the approach adopted by municipal courts will be noted.
We shall look first at the attitudes adopted by the British courts, and then
proceed to note the views taken by the United States and other countries.
44
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