Relationship between international and internal law

Relationship between international and internal law

Données clés

Professeur(s)	Robert Kolb

Lectures

This is an issue with important technical ramifications, namely the relationship between international and domestic law, also known as the "systems report".

It is not natural that the problem should arise, it must be understood that international law is not intended to be and is not self-sufficient.

To put it simply, and to solve the problem by its fundamental aspect, international law is designed primarily to create common standards, so that we can agree on things in common, we must be able to create common standards. If States encounter particular problems they must be able to create legal certainty through customary practice; the production of norms is essential to international law.

If Switzerland has a problem with Indonesia and wants to conclude an agreement with it, it is clear that this agreement cannot be subject to Indonesian law as well as Swiss law, because one would have precedence over the other. We need a public international law that is common to both States and superior to each other.

The creation of norms is necessarily at the international level, but at the same time, the implementation and enforcement of these norms will not ordinarily fall within the purview of public international law because there is no global state in which international law would fit so well that there would be higher standards than others. We cannot have an executive body for all these international standards at the international level, it can only be embryonic and limited.

International law is concerned with creating standards and the implementation of standards is left to States; it is States through the bodies that they implement. This choice is voluntary, because we do not want a "superstate" that would abolish the sovereignty of States; it is a "four-handed" job.

If this is the case, we need to explain how these international standards enter the domestic legal order. For example, it is necessary to explain how a Swiss judge can take into account an international standard that is not part of the Swiss legal system, because a Swiss judge can only apply Swiss law.

How does international law penetrate domestic law so that it can be applied?

The manner in which the international norm will be applied in domestic law is a matter for the State, it has constitutional autonomy, and it may choose to implement international norms. The way to achieve this is a matter for sovereign states.

If it has been determined how international law can penetrate the domestic legal order in order to be applied to it, what rank and hierarchical position will the international rules have within domestic law? Is a treaty concluded by a State superior to the law of parliament? What about customary law? We ask questions of hierarchy. A third problem is self-executing character rules.

These three issues have to do with the system reports in particular the first two problems.

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The introduction of international law into domestic law. Dualism and monism

Internal bodies can only apply their own legal order; they cannot automatically apply a foreign legal order; it is necessary to explain how this legal order becomes applicable in Switzerland, in other words how it penetrates the Swiss legal order so that it can be applied within the framework of the Swiss legal order.

There are two fundamental explanations that corresponded to State practices around the world; there are two constitutional traditions to explain the penetration of the international legal order into the domestic legal order.

These two explanations are due on the one hand to dualism and on the other hand to monism.

Dualism

In the dualist tradition, it is considered that the domestic legal order is considered to be entirely separate from the international legal order, i. e. two circles that are not grouped together, they can touch each other, but remain autonomous.

In other words, Swiss law and as separate from international law as from French law in the context of this vision.

The basis of this doctrine has been to consider that the two legal orders are based on distinct social and legal realities. It will therefore be stressed on the part of these persons that the sources are different, in the State it will be said that the source is the law, in international law the source is the agreement, the subjects are different, in international law it is the States, in the internal order it is the elected representatives, there is no nullity of the norm of international law, there is no nullity effect.

From all these considerations, these authors, but also the practice of some States, have come to the conclusion that there is a total separation between the two legal orders.

The question of how international law can penetrate the domestic legal order is resolved by introducing a special process. International law must be sought and transformed into domestic law.

Under a treaty, the United Kingdom concludes a treaty with Switzerland. We have the international legal order, the treaty is part of that order because it is concluded between two States in the international legal order. Is it in the English internal order? No, he can't penetrate it because the membranes are closed.

In this case, the English legislator i. e. parliament will have to take the treaty, take over all the terms of the treaty as is, insert them into a law, adopt the law according to the procedure provided for and once the English law of parliament has been adopted and which contains the treaty materially, then the content of the treaty will become applicable in England.

We see why we are talking about transformation, the treaty is not inserted in the domestic legal order, but the content of the treaty is taken over and inserted in a law then the content of the treaty becomes applicable through the law. The treaty has been transformed into a law, however, the treaty continues to exist; the treaty has been split into two parts, which has been inserted into a source of domestic law.

Monism

In the monistic system, as the word also says, the starting point is that international law and domestic law are originally part of a single legal order, a single global phoneme, there is no clear and complete separation between the international and domestic legal order.

In other words, it starts from the basic understanding that the international and domestic legal order are part of the same constituency.

Monists will often stress the fact that there are no fundamental differences between legal orders, that subjects do not differ greatly, and that a domestic norm contrary to international law is not zero is also true in domestic legal systems. They will stress what is common to the legal phenomenon, considering that domestic and international law is part of a legal whole. On the other hand, international law is not a foreign law because it contributes to it.

The result of this conception and States is that the resulting practice is a system of general introduction of international law into domestic law, there is no longer a need for a process of transformation.

The manner in which this introduction of international law into domestic law is effected is governed by a general norm of domestic law, international law being part of domestic law.

In Swiss law, there is a norm which says that international law is part of domestic law, since something moves in international law automatically the new treaty is part of the Swiss legal order.

For example, Switzerland concludes a treaty with the United Kingdom, what happens in Switzerland to make it enter the Swiss legal system? There is no need for the legislator to make a law or transform the treaty into law. As soon as the treaty enters into force, it automatically becomes applicable under Swiss law, but as a treaty and not as a federal law. The treaties are published in point 0; this is a monistic legal system.

The bottom line is that dualism is a doctrine that protects the sovereignty of the state, it is a fundamentally state doctrine, it is the states that want to protect the integrity of their domestic legal order from potentially hostile foreign legal penetration, it is protection by a membrane. In the United Kingdom, there is an attachment to the sovereignty of parliament, explaining why we are concerned that parliament should have the last word, and it also prevails in the Scandinavian states, which have had different customs and practices than the Western states, protecting their particularity through a dualist system.

The advantage of dualism, which is to protect the domestic legal order against unwanted penetration by international law, is redeemed by disadvantages.

In dualism, once a norm of international law begins to exist, the domestic legislator must transform it in order to be applicable, so that there are problems of time and danger of international responsibility with an exposure to violating treaties concluded embarrassing foreign policy since there is no automatic concomitance; by a greater autonomy one violates more often and one must respond to it.

On the other hand, protection is not absolute because dualism is applied according to treaties and written law. It is in relation to these written sources that dualism is applied; it can be transformed into a law. However, for customary law we cannot, because it is unwritten and it evolves more often as a result there is no dualist system of customary law.

As for monism, it is a much more internationalist doctrine that is much more favourable to international law, because it does not erect barriers against it. It is a more international system since it ensures the regular and simplified application of international law in domestic law. One avoids having time problems or norms would be valid in one system and not in another, there is a perfect piling up of time and things, as soon as an international treaty and concluded enters into force and is promulgated then it is applicable and all tensions are relaxed.

Why don't all states apply monism?

It cannot be said that we are not doing international law in order to elaborate an ideal world, we are doing international law as it appears from the practice of States. International law does not take a position on this, because it cannot impose anything on States that apply in large numbers.

International law leaves the way to domestic law to a very large extent, including by choosing a dualist system that engages the responsibility of States only in the case of the adoption of a monist system.

The dualist system is the system of Anglo-Saxon states and Scandinavian countries; the monistic systems are those of continental Europe with exceptions; Switzerland is part of the system of states that adopt the monistic system.

Monism and dualism respond only to the way in which they enter the domestic legal order. Switzerland has been a monistic country for a long and uninterrupted practice.

The rank of international law in domestic law

There is a very important distinction that must be made carefully. The question of rank arises differently in the international and domestic legal order. The question of what is the rank of international law in relation to domestic law is answered within the international legal order and the answers differ from one legal order to another.

If we look first of all at international law; one State brings a case before the International Court of Justice concerning a dispute with another State, we are in the field of international law, when one State negotiates with another it does not have to negotiate on its domestic law. At this level, international law always takes precedence over domestic law without reservation.

There is a rule of supremacy, any rule of international law prevails over domestic law, domestic law cannot be invoked to justify the non-application of international law. This rule also applies to customary law and international law as a whole.

International law would not be binding if each State could invoke a rule of domestic law to justify not applying international law. It would suffice to amend domestic law in order to no longer meet international obligations.

However, at the level of domestic law the rule is not international, because it is in the domain of the State, its territory and its sovereignty. Territorial sovereignty excludes any State and other decision maker from deciding on its public territory. Thus, international law thus depends on the domestic law of the State, there is no automatic superiority of international law over domestic law; since it is domestic law that inserts international law on its territory, it can determine that it will be its position in its domestic law. For example, an international rule could not be superior to the Constitution, which is quite possible under domestic law.

As in the case of dualism, there may be violations of certain international standards. There would be a violation of an international norm with the consequence of international responsibility.

We have very different things in the practice of different states.

There is seldom a primacy of domestic law, but it does sometimes exist. There is an old rule in the Anglo-Saxon states that statutes, i. e. the rights of parliament and judicial precedents, take precedence over international custom. Priority over custom is sometimes given to domestic law.

More generally, we have the primacy of international law; in this regard, there is a constitutional provision in the various States that provides for and organizes this primacy.

Sometimes in dualist systems there is a problem that can arise in connection with transformation. When a treaty is transformed into English law by an Act of Parliament, there is no longer simply a treaty left, but for the English bodies the treaty does not exist, which is what the Acts of Parliament are after a certain date. In such a system, if the legislator later legislates again later by deliberately or inadvertently departing from the earlier law, the later law modifies the earlier law in domestic systems, it is possible to apply the lex posteriori so that the English judge would give priority to the later law over the earlier law incorporating the treaty; systems of responsibility rather than the primacy of a standard.

What is the rank of international sources in the Swiss legal order?

First of all, these sources come naturally in the Swiss legal order, we are in a monistic system, everything is directly applicable.

There is no distinction between the different sources of international law, everything is called general international law.

However, there is an exception on imperative international law and non-imperative international law.

Imperative international law refers to the concept of ius congens. As far as imperative law is concerned, these rules are considered to have priority over all domestic law, including the Constitution, which is why an initiative cannot be put to the vote if it is contrary to imperative law.

Imperative law is considered to be superior to any norm of domestic law and to ensure that the constitution is not changed, it is impossible to annul a peremptory international norm.

For imperative international law, the rule followed in Swiss practice, with one exception, is to give precedence to international law over domestic law. Switzerland applies in Swiss law the rule of the primacy of international law over domestic law, we are close to the norm that exists in the international legal order.

In S v Federal Office of Police ATF. 122 II p. 486 122th year, section 2 "the principle of the primacy of international law over domestic law derives from the very nature of the law hierarchically superior to any domestic rule, this principle is applied in principle of Swiss law".

We generally do not have a major problem with the rule of primacy because the confederation has a very developed ethic in this area, we do not ratify the treaty that we would not have checked meticulously beforehand, if we find that domestic law is not in conformity with the treaty, either we do not ratify it or we modify domestic law before ratifying it. As a general rule, the order of the legislation takes account of these kinds of problems, including the necessary clauses. We insert the necessary flexibilities clauses in the law and, at worst, we denounce a treaty that gives a safety valve that could make it possible to denounce the treaty.

There is an exception to this uniform practice of the Swiss authorities, which continues to give precedence to international law over domestic law.

This exception is significant: it is the Schubert case law of the Federal Court, ATF 99 I p. 39 of 1974. A certain Schubert, Austrian, owned a property in Ticino and wanted to expand it by buying additional land. He made the administrative request to be allowed to buy the land, but the administration did not allow him to buy it, because a law had come into force which was called at the time the Lex Friedrich limiting the legal capacity of foreigners in Switzerland to buy land except in the case of special administrative authorization.

The purpose of this law is to establish that in some parts of the country, land was bought and owned mainly by foreigners with a whole series of consequences such as soaring prices creating speculation.

It was in accordance with this law that the Ticino authorities denied Schubert the purchase of a few properties that would have allowed him to expand his property.

However, there were also treaties on establishment and trade that Switzerland concluded with neighbouring states. In these 19th century treaties, there was an invariable clause which guaranteed that nationals of Contracting States could establish themselves in other States and purchase land there.

There was a subjective right given to the national of both States to buy land in the respective countries. The conflict is between a federal law voted by the people and an older international treaty.

If we apply the rule of international law which prevails over domestic law, the result would have been simple, there would have been primacy and the law voted by the people would have been expropriated, that is, defeated. In this Schubert judgment the Federal Court has weakened its practice and by 3 votes to 2 said that ultimately the Federal Court cannot control the conformity of the Federal Law Friedrich with the treaty is that in Swiss constitutional law the Federal Court does not have the power to invalidate a federal law, therefore the law remains in force and the treaty is violated.

In this case, the federal law had a great deal of weight, which is why these old treaties had not been given much thought. Since then, in the context of this law, the purchase of land by foreigners in Switzerland, this rule of primacy of international law over domestic law has not been applied and this is the only exception.

This jurisprudence of the Federal Court subsequently considerably embarrassed foreign affairs. There was no doubt that by giving priority to international law, Switzerland would violate the treaty. The author was not content to see her national's right violated and therefore suspended the treaty allowing Swiss citizens to acquire land in Austria. In order to misappropriate the law, joint-stock companies were created in order to acquire the assets of which extranationals were shareholders.

When the Swiss authorities became aware of this deception, they confiscated the assets for the benefit of the State. The Italians argued that they had circumvented the law, but it was unfair to confiscate their money because they were implementing the law giving the Italian citizen the opportunity to buy land in Switzerland that posed problems for foreign affairs. This adventure with the Lex Friedrich shows that when we go into violation of international law, foreign affairs must bear the consequences.

This takes on a certain magnitude and if the dispute is not resolved, foreigners will not accept the violation of their rights.

The last remark is that in order to prevent such situations from occurring, the Federal Court and the federal authorities have developed in a jurisprudence the principle of interpretation in accordance with international law, it will not be presumed that a domestic legal text would want to depart from international law, but rather the opposite, i. e. that the law or the domestic legal text attempts to be in conformity with international law, and that it will be interpreted in this respect.

It is a very consistent practice that avoids problems because it harmonizes the two sources.

Sometimes judges go a long way in interpreting it. The most telling example is not an example of Swiss law, but of the United States of America; in the 1980s, against the will of the federal administration, the Congress took a fury and decided to legislate with an anti-terrorism law. The purpose of this law was to make it illegal for certain terrorist organizations, including the PLO, to be present in the United States. By including the PLO and banning the entry of a member of the PLO, the United States prevented the United Nations from inviting anyone it wanted to invite. No one can apply a politics policy.

The federal administration was against this law, the Congregational government passed its law. In the United States, unlike Switzerland, the judiciary has a different power, the judiciary can invalidate a law.

A simple New York judge, knowing that the federal administration was with him, engaged in an interpretation consistent with the Senate law and made the law say what it did not say. Since it is not expressly stated that the PLO was mentioned, there was an exception to the PLO that could respect the headquarters agreement.

Consistent interpretation in some cases may take a very robust form or the judge contrary to the truth for reasons of conformity with international law will interpret international law in order not to violate an important international treaty.

The self-executing or non-executing character of the international standard

The question arises more than once as to whether a norm of international law and in particular treaty standards can be directly applied for the benefit of an individual who invokes it before an organ of domestic law.

The question is whether an individual can invoke Article 14 of any convention in order to assert a right before a Swiss court? The question is whether the standard is self-executing or not.

If it is self-exetucitng it can be invoked for its benefit and invoked before a Swiss body. If the standard is not self-executing, it cannot be invoked for its benefit before an enforcement body of domestic law.

How do you decide whether a standard is self-executing or not?

This depends on a range of considerations, interpretations and species. The standard is interpreted and based on two sets of considerations, on the one hand the intention of the parties to the treaty, because they sometimes indicate whether they want the standards they enact to be self-executing or not. Apart from the intention of the parties, it is based on the very nature of the rule, i. e. its objective characteristics and in particular the degree of precision of the rule and the existence of the necessary funding and bodies to implement the rule.

All this is mechanical. We have standards in the Treaties which are sometimes addressed to the legislator, they are framework laws or "programmes", it is provided that a certain number of things must be done in a certain area, but is not supposed to apply directly, it must first be put into practice and the national legislator must first of all act, the Treaty only provides for a general scheme.

If the treaty stipulates that everyone must be protected by a social security system, this is imprecise; the standard does not say so, it is the national legislator who determines how the system will be implemented. This standard is typically a non- self-executing standard because it provides "social security" protection.

On the other hand, under a conventional norm which provides that in the case of a criminal or civil lawsuit, whether one can defend oneself or by a lawyer, this norm can be perfectly self-executing, it is sufficiently precise to be implemented by a judge directly. So the judge can directly implement this standard and interpret it, it is a standard that can be invoked for the benefit of the individual.

ATF 112 judgment of 112 I letter p 184 - 185." Thus, a citizen can invoke a treaty before the administration and the courts if it lays down sufficiently precise and clear rules of law to apply as such to a specific case and form the basis for a concrete decision. This is not the case of a provision which sets out a programme or guidelines for the legislation of the Contracting States and which is addressed not to administrative or judicial authorities but to the national legislature. Direct applicability must also be denied to standards that merely outline the regulation of a matter or create considerable discretion ".

It is a matter of interpretation whether a standard is self-executing or not. It also depends on the countries.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 140

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 141

In the Swiss constitution, we have mandatory and optional referendums in article 140 and 141 of the Constitution. When we want to ratify certain treaties, this is subject to a popular vote, either obligatory or optional.

They are subject to a compulsory referendum under Article 140, first of all when the Treaty relates to membership of a collective security organisation and when it comes to membership of a supranational community.

A supranational community is any community that can lay down rules directly applicable to individuals within the various Member States.

Other treaties may be subject to referendum even if it is not mandatory.

In Article 141 is the optional referendum, within 100 days after the official publication of the draft treaty 50,000 citizens or 8 cantons can submit the treaty to referendum in cases of treaty with indefinite and non denunciable duration, membership in an international organization that would not be collective and supranational security and concern important provisions laying down rules of law and/or implementation requires the adoption of rules of federal law.