LLB343 Lecture Notes - Lecture 6: Positive Law, Native Title Act 1993, Opinio Juris Sive Necessitatis
SEMINAR WEEK 6 –
TOPIC 4 – RELATIONSHIPS BETWEEN LEGAL SYSTEMS:
Different subjects and different planes, so municipal and international law don’t regularly
interact with one another
There are CONTRAST that exist between theories of international law and municipal law
CONTRAST – THEORETICAL V PRACTICAL APPROACH
oTHEORETICAL approach –
TWO primary schools of thought:
DUALISM:
oUsed by most Anglo states (common law)
oTwo systems are on different planes and do not interact
Focus on distinguishing features
Can only interact if a transformation occurs
oNo system is necessarily overriding
Municipal law overrides in inconsistencies
MONISM:
oUsed by most civil states
oSystems are two parts of a single whole
Focus on the fact that they’re both law
Law of Treaties
oEmphasis on human rights
Commonalities
Most monists are natural lawyers
oPRACTICAL APPROACH –
Primary consideration – what rules govern conduct
Operates within the rules of a particular system
International law dealing with municipal law
General rule – however the obligation arises, one must obey it, and
municipal law cannot be an excuse not to obey – Article 46
Alabama Claims Arbitration (1872)
oFacts:
Rule of the time – other States must be neutral in civil wars
Government of UK was sympathetic to South America
Attempting to prevent US becoming a dominant power
Allowed raiders to be made in UK ports
o‘raiders’ – war ship disguised as a merchant vessel
Most successful ship – Alabama
oShot 67 vessels
US was infuriated
Threatened to invade Canada
Could not due to a shortage of fighters
Agreed to settle through arbitration
Agreed the decision was binding
oLegal proceedings –
find more resources at oneclass.com
find more resources at oneclass.com
US argued that UK breached a customary obligation to not
intervene in civil wars
UK argued it was entitled to do whatever was not prohibited by law
oFinding –
UK lost
Provisions of municipal law cannot be used to breach international
law
Especially customary law
Ordered to pay damages (and did pay)
Cases pre-Vienna Convention on the Law of Treaties
oGreek v Turkey
‘enosis’ movement – union of all Greeks to return to one state
Seemed to be impossible
After the fall of the Turks, the Greeks went to war
oTurks managed to win
oExpelled all Greeks that were living in Turkey
oGreece then expelled all Turks from Greece
Issues in Bulgaria led to expulsion
Claimed to be voluntary but wasn’t really
Signed a treaty for expulsion
oCould not agree on terms
Communities Case (Greece v Bolgaria)
Dispute over the definition of community
Finding – municipal law cannot be used to interpret
international law
oConstitutions cannot be relied on
oConflict – INTERNATIONAL LAW PREVAILS
Article 46
International law can turn to municipal law to determine validity
oDecisions of municipal courts – form state practice and opinio juris
If uniform, general and consistent = custom
oGeneral principles – evidence shows a principle as valid
oOverlap:
Nationality – important at both domestic and international levels
If left to municipal law it will be inconsistent
Municipal law dealing with international law
oMunicipal law of UK with international law
Perspective – dualist
If incorporated, forms a part of municipal law
oIncorporation may reference transformation (dualist)
oIncorporated by parliament
oBound on the international plane, but not bound nationally
until ratification/incorporation/transformation
Also the procedure in France and Italy
Nottebohm Case (Liechtenstein v Guatemala) 1955
oFacts:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Different subjects and different planes, so municipal and international law don"t regularly interact with one another. There are contrast that exist between theories of international law and municipal law. Contrast theoretical v practical approach: theoretical approach . Dualism: used by most anglo states (common law, two systems are on different planes and do not interact. Can only interact if a transformation occurs: no system is necessarily overriding. Monism: used by most civil states, systems are two parts of a single whole. Focus on the fact that they"re both law. Law of treaties: emphasis on human rights. Most monists are natural lawyers: practical approach . Primary consideration what rules govern conduct. Operates within the rules of a particular system. General rule however the obligation arises, one must obey it, and municipal law cannot be an excuse not to obey article 46. Rule of the time other states must be neutral in civil wars. Government of uk was sympathetic to south america.
