Abstract
The continuing development of an international community within which states generate and bind themselves to legal rules and standards is designed not only to achieve international peace and security—as expressed in the Charter of the United Nations1—but also in order to create a community of states within which each state is limited by external legal norms and not merely by its own will or political, financial and military resources. In other words, one of the products of the creation of a relatively formalised international community has been the creation of an international legal community of states within which an international rule of law continues to develop. This chapter is not concerned with that international rule of law as it operates on the international legal level; rather it is concerned with the mechanisms by which the rule of international law may be brought about. In other words, it is concerned with ways in which the international rule of law, including international legal norms, might be enforced by means of domestic legal processes thus resulting in a rule of international law.
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Notes
- 1.
Article 1(1), Charter of the United Nations.
- 2.
G. O’Donnell, “The Quality of Democracy: Why the Rule of Law Matters” (2004) 15 Journal of Democracy 32, at p. 32.
- 3.
This refers to the fact that domestic law tends to be particularly receptive to repressive amendment and restructuring, especially where there is a prevailing climate of panic such as, for example, in the wake of a terrorist attack or in relation to a perceived wave of extreme criminality.
- 4.
Supporting the position see, for example, Harold Sprout, “Theories as to the Applicability of International Law in the Federal Courts of the United States” (1932) 26 American Journal of International Law 280, pp. 282–285 and Louis Henkin, “International Law as Law in the United States” (1984) 82 Michigan Law Review 1555, pp. 1555–1557. For a critical perspective on this position see, for example, Curtis Bradley & Jack Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position” (1997) 110 Harvard Law Review 815
- 5.
Buvot v Barbuit (1737) Talb. 281; Triquet v Bath (1764) 3 Burr. 1478.
- 6.
Singarasa v Attorney General SC SPL (LA) No. 182/99 (2006).
- 7.
M Dixon, Textbook on International Law, 5th Edition, (2005, Oxford; Oxford University Press), p. 83.
- 8.
R. Higgins, Problems and Process: International Law and How we Use it (1994, Oxford; Clarendon Press), p. 206.
- 9.
H. Kelsen, The Principles of International Law, 2nd Edition, (1967, New York; Holt), p. 553; Kelsen, of course, claimed that they were two such systems and, as a result, “form[ed] part of the same legal order” (p. 553).
- 10.
P. Stephan, “The New International Law – Legitimacy, Accountability, Authority and Freedom in the New Global Order” (1999) 70 University of Colorado Law Review 1555, esp. 1556–1562; See also C. Bradley and J. Goldsmith, “Treaties, Human Rights and Conditional Consent” (2000) 149 University of Pennsylvania Law Review 399.
- 11.
J. Ku, “Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes” (2005) 80 Indiana Law Journal 319, 329–332.
- 12.
Section 198(c), South Africa Constitution.
- 13.
See generally I. Currie and J. de Waal, The Bill of Rights Handbook, 5th ed, (2005, Capetown; Juta and Company), Ch 26.
- 14.
S v Makwanyane and Anor, 1995 (3) SA 391 (CC), para 35 (footnotes omitted).
- 15.
Government of the Republic of South Africa v Grootboom & Ors 2001 (1) SA 46 (CC), para 26.
- 16.
S v Makwanyane & Anor, 1995 (3) SA 391 (CC).
- 17.
S v Baloyi 2000 (2) SA 674 (CC).
- 18.
Government of the Republic of South Africa v Grootboom & Ors 2001 (1) SA 46 (CC).
- 19.
Minister of Health v Treatment Action Campaign 2002 (2) SA 721 (CC)
- 20.
2001 (1) SA 46 (CC)
- 21.
Ibid para. 3.
- 22.
Grootboom v Ooxtenberg Municipality and Ors 2000 (3) BCLR 277 (C).
- 23.
Ibid, 293A.
- 24.
2001 (1) SA 46 (CC), para 21.
- 25.
P. Andrews, “Incorporating International Human Rights Law in National Constitutions: The South African Experience” in R. Miller and R. Bratspies (eds), Progress in International Law, (2008, Leiden; Martinus Nijhoff), 835 at p. 851.
- 26.
1995 (3) SA 391 (CC), para 9 per Chaskalson CJ.
- 27.
R v Bow Street Magistrates’ Court ex parte Pinochet (No.1) [2000] AC 61; R v Bow Street Magistrates Court, ex parte Pinochet (No.2) [2000] AC 119; Regina v. Bow St. Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) [1999] 2 WLR 827.
- 28.
[2002] AC 883.
- 29.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (1971) ICJ 16.
- 30.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, (1986) ICJ 14.
- 31.
[2005] QB 259.
- 32.
Ibid, para 30 per Bingham L.J.
- 33.
See further K. Reece Thomas, “The Changing Status of International Law in English Domestic Law” (2006) 53 Netherlands International Law Review 371, at 386–388.
- 34.
[2005] 2 AC 68.
- 35.
For comprehensive commentary on this Act see H. Fenwick, “The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response?” (2002) 65 Modern Law Review 724.
- 36.
Derogations can be entered under Article 15 of the Convention in the case of war or emergency threatening the life of the nation. Where such a derogation is entered, Article 15 expressly provides that the measures taken on foot thereof must be “strictly required by the exigencies of the situation”. In effect, this results in a proportionality analysis of the measures taken pursuant to a derogation.
- 37.
[2005] 2 AC 68, pp. 117–121 relying on Resolution 1271 adopted on 24 January 2002 by the Parliamentary Assembly of the Council of Europe; General Policy Recommendations published on 8 June 2004 by the European Commission against Racism and Intolerance; Universal Declaration of Human Rights; General Assembly Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live; General Comment No 15 of the UN Human Rights Committee; International Covenant on Civil and Political Rights; General Comment No 29 of the UN Human Rights Committee; International Convention on the Elimination of All Forms of Racial Discrimination 1966; General Recommendation XI of the CERD Committee; Concluding Observations of the CERD Committee on the United Kingdom (10 December 2003, CERD/C/63/CO/11); R. Lillich, “The Paris Minimum Standards of Human Rights Norms in a State of Emergency” (1985) 79 American Journal of International Law 1072.
- 38.
Ibid, p. 121.
- 39.
Clive Symmons has helpfully separated the kinds of cases in which CIL arguments have been made into a number of categories: (1) “criminal cases where the aim of the litigation was to bring about an acquittal, or for the relevant criminal statute to be declared unconstitutional” which are generally not successful (p. 112. For example see MFM v MC et al. (Proceeds of Crime) [2001] 2 IR 385 and Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97) (2) “State-based sovereign immunity cases” where the invocation of CIL has been largely successful (p. 113, see for example Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 IR 484 and McElhinney v Williams and the Secretary of State for Northern Ireland [1995] 3 IR 382); and (3) cases where “a private litigant is seeking not to directly enforce his private rights against the State, but is, rather, taking an actio popularis … to restrain the Irish Government from conducting its foreign affairs in a way allegedly contrary to international law” which have largely been unsuccessful (p. 113. See for example Horgan v Ireland [2003] 2 IR 468)—C. Symmons, “The Incorporation of Customary International Law into Irish Law” in G. Biehler, International Law in Practice: An Irish Perspective (2005, Dublin; Thomson Round Hall), 111.
- 40.
[1999] 4 IR 432.
- 41.
[2001] 1 IR 1.
- 42.
(1995) 20 EHRR 442.
- 43.
[1984] IR 36.
- 44.
The Irish courts have developed a constitutional doctrine of unenumerated rights—personal rights that have constitutional protection notwithstanding their lack of express protection within the constitutional text itself.
- 45.
(1981) 4 EHRR 149.
- 46.
[1960] IR 93.
- 47.
(1961) 1 EHRR 15.
- 48.
Ibid p. 125 per Maguire CJ. This principle remains good law in Ireland and has been reasserted in, e.g., Application of Woods [1970] IR 154; E v E [1982] ILRM 497; O’B v S [1984] IR 316.
- 49.
S. Besson, “The Reception Process in Ireland and the United Kingdom” in H. Keller and A. Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (2008, Oxford; Oxford University Press), 32 at p. 52.
- 50.
On the history and operation of the Special Criminal Court see F. Davis, The Special Criminal Court, (2007, Dublin; Four Courts Press).
- 51.
[2002] 3 IR 97.
- 52.
Communication No. 1114/2002, U.N. Doc. CCPR/C/76/D/1114/2002/Rev.1 (2002).
- 53.
[2002] 3 IR 97, at p. 129.
- 54.
Leelawathie v Minister of Defence and External Affairs (1965) 68 NLR 487, at p. 490 per Sansoni CJ.
- 55.
SC SPL (LA) No. 182/99 (2006).
- 56.
Singarasa v Sri Lanka Communication No. 1033/2001, UN Doc. CCPR/C/81/D/1033/2001 (2001).
- 57.
Quoted by Sir Nigel Rodley in “The Singarasa Case: Quis Custodiet…? A Test for the Bangalore Principles of Judicial Conduct” (2008) 41 Israel Law Review 500, at p. 504.
- 58.
SC SPL (LA) No. 182/99 (2006), at pp. 15–17.
- 59.
“The Singarasa Case: Quis Custodiet…? A Test for the Bangalore Principles of Judicial Conduct” (2008) 41 Israel Law Review 500, 506.
- 60.
This decision appears not to be reported but is discussed in ITUB CSI IGB, 2008 Annual Survey of Violations of Trade Union Rights, available at http://survey08.ituc-csi.org/survey.php?IDContinent=3&IDCountry=LKA&Lang=EN (accessed 5 March 2009).
- 61.
ILO, Digest of Decisions and Principles of the Freedom of Association Committee, 5th Edition, (2006), Annex 1, para. 30.
- 62.
Case No. 2519, discussed in the 348th Report of the Committee on Freedom of Association (2007), available at http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_087609.pdf (5 March 2009), pp. 311–320.
- 63.
The ICCPR is now part of domestic Sri Lankan law by means of the ICCPR Act 2007 enacted as a direct consequence of the Singarasa decision.
- 64.
For an excellent review see David Nelkin, “Using the Concept of Legal Culture” (2004) 29 Australian Journal of Legal Philosophy 1.
- 65.
On the desirability of relying on international human rights law’s structures and principles of counter-terrorism, for example, see F. de Londras, “The Right to Challenge the Lawfulness of Detention: An International Perspective on U.S. Detention of Suspected-Terrorists” (2007) 12 Journal of Conflict and Security Law 223, pp. 255–260.
- 66.
543 US 551 (2005).
- 67.
492 U. S. 361 (1989).
- 68.
T. Bingham, “The Rule of Law” (2006) 66 Cambridge Law Journal 67.
- 69.
Constitutional Reform Act 2005, s. 1—“This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in relation to that principle”.
- 70.
These were (1) the law must be accessible and as intelligible as possible; (2) legal disputes ought to be resolved by application of law as opposed to discretion, except where discretion is “narrowly defined and its exercise capable of reasonable justification” (p. 10); (3) the law should apply equally to all, with the exception of differences that are objectively justifiable; (4) the law must adequately protect fundamental human rights; (5) all people must have the means of resolving good faith legal disputes; (6) public officers must exercise their powers reasonably, responsibly, in good faith and within their allowable extent; (7) methods of adjudication ought to be fair; (8) the state must comply with its obligations under international law—T. Bingham, “The Rule of Law” (2006) 66 Cambridge Law Journal 67.
- 71.
See, for example, J. Raz, “The Rule of Law and Its Virtue” in Raz, J., The Authority of Law: Essays on Law and Morality (1979, Oxford; Oxford University Press), p. 221; P. Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” [1997] Public Law 467. For a detailed consideration of the rule of human rights and judicial determination thereof within a Rule of Law paradigm, see B. Tamanaha, On the Rule of Law: History, Politics, Theory (2004, Cambridge; Cambridge University Press), pp. 104–108.
- 72.
Dicey famously argued that individuals’ liberties remained protected because of the three-part legislative structure (Monarch, Commons and Lords) and the centrality of the Rule of Law to the English constitutional structure. This structure, he claimed, was “no mere matter of form; it has most important practical effects. It prevents those inroads upon the law of the land which a despotic monarch … might effect by ordinances or decrees …”—V.C. Dicey, An Introduction to the Law of the Constitution, 8th Edition, (1915, London; MacMillan), quoted in C. Stychin and L. Mulcahy, Legal Method: Text and Materials, 2nd Edition, (2003, London; Sweet & Maxwell), p. 63.
- 73.
For a thorough discussion see D. Gwynn Morgan, A Judgment Too Far? Judicial Activism and the Constitution (2002, Cork; Cork University Press).
- 74.
See the conference programme, available for download at http://cjei.org/events.html (5 March 2009).
- 75.
See the preliminary conference programme, available for download at http://www.paragon-conventions.com/cmja2009/images/updated%20programme_feb_24.pdf (5 March 2009).
- 76.
Communication from the Commission to the European Parliament and Council on Judicial Training in the European Union COM/2006/0356; see also W. Heusel, “Editorial: A Network for European Judicial Training” (2008) 2 ERA-Forum 69. See also EuroJust and the European Judicial Network.
- 77.
There is an emerging recognition of a form of convergence of adversarial and inquisitorial approaches between common and civil law systems, which tend to be adversarial and inquisitorial respectively, in criminal matters that ought not to be discounted in the area of domestic internationalisation. For more on this see, for example, J. Jackson, “The Effect of Human Rights on Criminal Evidentiary Processes: Towards, Convergence, Divergence or Realignment” (2005) 68 Modern Law Review 737.
- 78.
Boumediene v Bush 128 S.Ct. 2229 (2008).
- 79.
F. de Londras, “What Human Rights Law Could Do: Lamenting the Lack of an International Human Rights Law Approach in Boumediene & Al Odah” (2008) 41 Israel Law Review 562, at 593.
- 80.
See, for example, UN Human Rights Committee Concludes 69th Session, UN Doc. HR/CT/587 recommending “that steps should be taken to end the jurisdiction of the Special Criminal Court.”
- 81.
See especially In re MacCurtain [1941] IR 83; The State (Bollard) v The Special Criminal Court, Unreported, High Court, 20 September 1972; Savage & McOwen v Director of Public Prosecutions [1982] 2 ILRM 385; O’Reilly & Judge v Director of Public Prosecutions [1984] ILRM 224.
- 82.
Criminal Justice (Amendment) Act 2009.
- 83.
The Irish Constitution includes a recognition of the “right to life of the unborn” (Article [40.3.3]) which now permits Irish women to travel abroad for the purposes of acquiring an abortion, permits the provision of information relating to abortion and other options to women who have unwanted pregnancies, and permits for termination in Ireland where the life of the mother is endangered including as a result of a risk of suicide. For a comprehensive consideration of the long and complex history of the constitutional prohibition on abortion see J. Schweppe (ed.), The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection? (2008, Dublin; Liffey Press).
- 84.
As well as being applied to situations of ‘moral sensitivity’, the Margin of Appreciation is also applied as a type of proportionality analysis to state actions taken pursuant to a derogation in times of war or emergency under Article 15 of the Convention. See Ireland v United Kingdom [1978] ECHR 1.
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de Londras, F. (2010). Dualism, Domestic Courts, and the Rule of International Law. In: Sellers, M., Tomaszewski, T. (eds) The Rule of Law in Comparative Perspective. Ius Gentium: Comparative Perspectives on Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3749-7_12
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