The
Conflict between National and International Law
In the same
way that the ratification process for international conventions
varies between States, so too does the impact of international
jurisprudence in national courts. Although it is generally accepted
that international law may influence domestic courts where there
is uncertainty or ambiguity, some States parties may be more
hesitant than others in executing at the national level, recommendations
made in the international foyer. For example:
-
The
South African Constitution explicitly states in Section 233
on the Application of International Law:
"When interpreting any legislation, every court must
prefer any reasonable interpretation of the legislation that
is consistent with international law over any alternative
interpretation that is inconsistent with international law."
-
Australian
High Court decisions have noted the influence of international
law on the development of domestic law and its importance
in relation to domestic decision-making.
"…the opening up of international remedies to individuals
pursuant to the… Optional Protocol [to the International
Covenant on Civil and Political Rights]... brings to bear
on the common law the powerful influence of the Covenant and
the international standards it imports. The common law does
not necessarily conform to international law, but international
law is a legitimate and important influence on the development
of the common law, especially when international law declares
the existence of universal human rights." (Mabo v Queensland
(No 2) (1992) 175 CLR 1)
-
Section
9 of the Nepal Treaty Act (1991) provides that any treaty
to which Nepal is a States party is enforceable as national
law. In case of disparity between a domestic law and a treaty,
the latter will be given effect. Likewise, in the Supreme
Court judgment in Reena Bajracharya v HMG [1], its confirmed
decision mentioned that an international convention ratified
by Nepal prevails over domestic Nepalese law.
-
The
English courts, however, have been less receptive to the application
of international norms:
"…it is firmly established that international treaties
do not form part of English law and that the English courts
have no jurisdiction to interpret or apply them: JH Rayner
(Mincing Lane) Ltd v Department of Trade and Industry [1990]
2 AC 418. Parliament may pass a law which mirrors the terms
of the treaty and in that sense incorporates the treaty into
English law. But even then, the metaphor of incorporation
may be misleading. It is not the treaty but the statute which
forms part of English law. And English courts will not (unless
the statute expressly so provides) be bound to give effect
to the interpretations of the treaty by an international court,
even though the United Kingdom is bound by international law
to do so. Of course there is a strong presumption in favour
of interpreting English law (whether common law or statute)
in a way which does not place the United Kingdom in breach
of an international obligation." R v Lyons & Others
[2002] UKHL 44 Para 27
However,
while questions concerning the hierarchy of international law
over national legislation remain, with the increasing number
of cases being taken to international institutions as a final
port of call in seeking resolution, such questions are gradually
being addressed and resolved by the internal structures and
mechanisms of States parties. Therefore there is reason to be
positive and proactive in ensuring that remedies allocation
at the international level are enforced in the national arena.
Note:
[1] Reena Bajracharya v HMG Writ No. 2812 of 1999, Supreme Court
of Nepal.
This
page was last updated on November 1, 2003
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