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December 5, 2004

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Relationship between domestic and international laws

Barrister Harun ur Rashid

The relation between domestic and international laws has engaged attention of jurists from early days when international law has come into play. Domestic laws are those that are enacted by national Parliaments and the domestic judiciary enforces them. Whereas international law originates from a variety of sources including consensus among states on rules of law applicable between them including rules that contain in the multilateral treaties and conventions. There is no international judiciary to enforce international law.

Two Schools of thought
Since the sources of the two body of law are different, there are two schools of thought. One is Monistic doctrine and the other is known as Dualist doctrine. Monism affirms that both principles of law-domestic and international-constitute a single body of rules. The Dualists do not agree with this view on the ground that international law deals with states and domestic law deals with individuals within states, besides the varying sources of law.

The above two views do not present the whole picture of relation between the two laws. A host of international law such as in areas of human rights, environment, illegal drug trafficking and prevention of organized crime cannot be implemented unless domestic laws exist to enforce on the offender. In view of the close relationship, it is argued that both domestic and international laws are complimentary to each other. Both are necessary and one cannot do with the other on issues that affect all states. For example, torture, a crime of universal jurisdiction under international law, cannot be enforced within a state unless domestic laws are enacted to punish the offender or prevent it. Otherwise prohibition of torture under international law will remain a moral concept.

State practice
The relationship between the two bodies of laws can best be understood by examination of state practice. This means that how states enforce both the laws and in what way states accord priority to one set of laws over the other. Some states give priority to domestic laws over international law, while other states consider some areas of international law, in particular, human rights law cannot be derogated by domestic laws. These non-derogable laws are inherently inalienable human rights because of the inherent dignity of the human person.

Let us take a few countries to analyse their state practice, such as the US, Britain, India and Bangladesh.

In the US, the Courts considered international law a part of the law of the land. In 1796 the US Supreme Court invoked international law to decide an appeal for debt relief in the case of Ware vs Hylton.

The Anglo-American Treaty of 1783 provided the principle of reciprocity whereby neither party would interfere with the collection of debts and therefore the indebtedness of an American citizen to a British creditor could be enforced. Justice Wilson described the Treaty as a " supreme law which overrides state laws (domestic laws) on the subject." Furthermore in the Nereide case (1815), Chief Justice Marshall asserted that the "Court is bound by the law of nations, which is a part of the law of the land". The exception appears to be in the case of rights of private citizens given by domestic laws, such as ownership of property.

A large part of British laws are customary laws. This means laws have come down from generation to generation on common consent by citizens. No Parliament as such has enacted such laws. Since customary law is based on the principle of common consent, Blackstone in 1765 asserted that the international law was to be a part of the law of the land. This principle applied by Lord Mansfield in 1764 in Triquet vs Bath. In 1905, the Court, in the case of West Rand Central Gold Mining case, held that whatever had received common consent of the civilized nations must have received the consent of Britain. Furthermore international law will apply in cases where domestic laws are silent.

Difference between the US and Britain
Put simply, American Courts liberally draw upon international customary law in domestic cases, while British Courts apply domestic laws first; even they depart from international law. In other words, it appears that American Courts have a more liberal approach towards international law than that of British Courts.

Bangladesh & India
In Bangladesh it appears that Courts are inclined to follow both US and British practice depending on situations and circumstances. It is well established that provisions of a treaty do not automatically apply in the country unless enabling domestic laws are passed. For example, the granting of immunity to World Bank can only provided by a law passed by Parliament.

The above principle has its foundation in the doctrine of separation of powers, enshrined in the Bangladesh Constitution. It sets out the powers of parliament, the Executive and the Judiciary. The powers are not unlimited. Legislation can be attacked in the Courts as beyond the power of the Constitution. Executive acts can also be challenged in the Courts because they contravene laws and in some case the Constitution. The Judiciary is to apply the laws as they are.

Although the Executive is empowered to sign a Treaty or a Convention, it cannot be implemented unless domestic laws are enacted to enforce the provisions of the Treaty or Conventions. Therefore Parliament has a final say as to whether the treaty or Convention is to be implemented in the country.

However there is one exception, customary international laws do not require legislation because Bangladesh, a member of the international community, must enforce customary international laws that have been developed with the common consent of nations. For example, diplomatic immunities and privileges are accorded to diplomats, stationed in Bangladesh, long before the 1961 Vienna Convention on Diplomatic Relations came into force. The immunities and privileges to diplomatic personnel are part of customary international law.

The same principles apply to India as well. This means that domestic laws prevail over international laws, unless they are customary international laws. In 1948, in the case of Gramaphone Company Ltd. Vs Pandey, the Supreme Court observed in obiter dicta that domestic laws would prevail over international law, except in the case of customary international law.

Concluding remarks
The above discussion demonstrates the close relationship between domestic and international laws. In an inter-connected world, one set of laws cannot fully satisfy the obligations of a state. International law will have to be enforced on domestic situations by states when they are relevant through domestic laws and in case of customary international laws, it is a part of the requirement of each state to implement them as one of the obligations for a responsible member of international community.

The author is former Bangladesh Ambassador to the UN, Geneva.

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