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Summary Alle kennisclips Public International Law
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Week 1: Relationship between international and national(domestic) law – focus on the Netherlands (domestic legal order)
International perspective
States cannot refer to the rules of their own laws as an excuse or justification for
not complying with their obligations in the international legal order.
- Every State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke
provisions of its constitution or its laws as an excuse for failure to
perform this duty. – Article 13, Declaration on Rights and Duties of States
- A party may not invoke the provisions of its internal law as justification for
its failure to perform a treaty – Article 27, Vienna Convention on Law of
Treaties
- The responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations – Article 32, ILC
Articles on State Responsibility
National/domestic perspective
How does the international law enter into the domestic legal order?
- Effect of international law in domestic legal order is determined by domestic
law – each owns constitutional law and not international law.
- Dualist or monist approach
Monism: international law automatically part of domestic legal order
(incorporation)
Dualism: international law needs to be transformed into domestic law first
(transformation)
Key issues from applying international law into national law – decided by
domestic law
- Validity (applicability) of international law in domestic legal order
- Direct effect (invocability) of international law in domestic legal order
- Primacy (supremacy) of international law over conflicting domestic law in
domestic legal order – conflict with norms
Does international law prevail over domestic law and under what conditions?
Validity in the Netherlands
- All international law valid or applicable in domestic legal order
- Domestic law must be applied in conformity with all international legal
obligations of the Netherlands. Often applied indirectly, domestic law
interpreted in conformity with international obligations. Dutch law has to be
applied so it is in conformity with the international obligations. Indirect
applicability of international law
- Cannot lead to contra legem interpretation of domestic law, international law
cannot be applied in such a way that it directly contradicts the ordinary
meaning of the provisions.
Based on principle of Dutch customary constitutional law, unwritten.
Direct effect in the Netherlands
- Only provisions of treaties and of decisions by international organizations
which are binding on all persons by virtue of their contents can be invoked
directly – Article 93, Dutch Constitution
Customary international law is excluded, only certain provisions can be
invoked.
Primacy in the Netherlands
,- Dutch law is not applicable if such application is in conflict with provisions of
treaties or of decisions by international organizations that are binding on all
persons – Article 94, Dutch Constitution – Supremacy Clause refers to same
limited provisions
,NS-FNV case of Dutch Supreme Court (1986)
How do you distinguish provisions with direct effect from ones that don’t?
About right to strike. FNV wanted worker to strike, NS wanted judge to prohibit
them.
- Article 6(4) European Social Charter: With a view to ensuring the effective
exercise of the right to bargain collectively, the Parties […] recognize the right
of workers and employers to collective action in cases of conflicts of interest,
including the right to strike.
Directly applied provision, is this correct? Supreme Court said it was;
- Article 6(4) European Social Charter has direct effect if: (3 conditions)
We cannot infer from the travaux préparatoires that direct effect of this
provision was excluded
The provision does not oblige the Dutch legislator to make domestic law
with a particular content
The provision is suitable, by virtue of its content, to be applied as if it were
a provision of domestic law
In the case the conditions were met. They were allowed to go on a strike.
- To respect separation of powers, judge should not make policy by applying
vague international provisions! For direct application / invocability the rules
have to be clear. There should be no discretion left.
Smoking ban case of Dutch Supreme Court (2014)
- Article 8(2) WHO Framework Convention on Tobacco Control:
Each Party shall adopt and implement in areas of existing national jurisdiction as
determined by national law and actively promote at other jurisdictional levels the
adoptions and implementation of effective legislative, executive, administrative
and/or other measures, providing for protection from exposure to tobacco smoke
in indoor workplaces, public transport, indoor public places and, as appropriate,
other public places. ban smoking form public spaces
Netherlands had implemented this treaty this obligation but had made an
exception for small cafes without staff. Smoking was allowed here.
Is this exception consistent with the convention?
Non-smokers went to the judge and alleged that the Netherlands had breached
this obligation. Question of direct effect, invocability.
Court didn’t apply same criteria. Article 8(2) WHO Framework Convention on
Tobacco Control has direct effect:
- Despite the fact that it calls upon Dutch legislator to make domestic law with
a particular content
- Nonetheless, the provision is suitable, by virtue of its content (it is sufficiently
clear and precise), to be applied as if it were a provision of domestic law, very
little discretion left
- In context of small cafes, this means a complete smoking ban.
, Week 2 obligatory: North Sea Continental Shelf Case
(International Court of Justice) and formation of customs
Relevance between treaties on the one hand and customs on the other hand.
Can the existence of a customary rule be derived from a treaty, and if so under
what conditions?
North Sea Continental Shelf
Case between the Netherlands & Denmark and Germany
How to divide the land across the continental shelf? All had different proposals
Germany: ‘We must give each State a just and equitable share’ divide
continental shelf equally
Netherlands and Denmark: ‘We must apply rule of equidistance, except in special
circumstances’ little part for Germany
Which proposal?
‘In the absence of agreement, and unless another boundary line is justified by
special circumstances, the boundary shall be determined by application of the
principle of equidistance from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.
- Article 6, Geneva convention on the Continental Shelf Germany not a part
of the Convention
Treaty is customary international law and binding on Germany
Court:
‘Articles in a convention can be regarded as reflecting, or as crystallizing,
received or at least emergent rules of customary international law’
‘Even without the passage of any considerable period of time, a very
widespread and representative participation in the convention might suffice of
itself [to make a decision in the convention customary], provide it included
that of States whose interests were specially affected.’ Convention of Geneva
was not very widespread
‘Within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of the provision
invoked.’ States must have been complied with the Convention, both States
that are partied and States that are not partied to the Convention.
Treaty – Custom
- Treaty reflects or codifies pre-existing custom
- Treaty crystallizes emerging rules of custom North Sea Continental Shelf
Case, Netherlands and Denmark
- Treaty generates new custom after its entry into force, when accompanied by
consistent State practice North Sea Continental Shelf Case, Germany
Treaty provision can generate new custom when
- The treaty provision is of norm-creating character
- The drafters of the treaty provision intended it to have norm-creating effect
- State practice is in line with what the provision prescribes
Three conditions have to be met.
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