Law 9: Analysis of International and National Law Relationship
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This essay provides a comprehensive analysis of the relationship between international and national law in New Zealand, primarily focusing on the dualist system. It examines how international law, particularly through treaties like the Vienna Convention, is incorporated into domestic law. The paper discusses the contrasting perspectives of Article 27 of the Vienna Convention and the judgments in cases like Ashby v Minister of Immigration and Tavita v. Minister of Immigration, highlighting the tension between international obligations and domestic legal precedence. The essay further evaluates the impact of international law on national law, considering both dualist and monist approaches, and examines the role of courts in interpreting and applying international instruments. Finally, it concludes by emphasizing the practical implications of these legal frameworks, acknowledging the precedence given to national laws and the influence of international norms on domestic legal practices. The essay utilizes case laws, statutes and journals to support the arguments.
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Running Head: Law 1
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Introduction:
Relationship between international and national law in New Zealand is described on the basis of
dualist system, and as per this theory international law and national law drives on different
planes. For the purpose of forcing the law, the provisions of treaties must be incorporated into
legislation through parliament. However, the method through which Courts uses the international
instruments also exposes the language related to dualism. As stated in article 27 of Vienna
Convention on the Law of Treaties1 states the provisions related to internal laws and their
observance on treaties. However, in Case Ashby v Minister of Immigration [1981] 1 NZLR
222, Richardson, J stated at p 2292, Court stated that if provisions of the domestic laws are clear
then such provisions must be given effect in our Courts no matter whether such provisions
complied with the New Zealand’s international obligations or not.
This paper critically evaluates the relationship between international law and domestic law in
context of these two conflicting statements. Lastly paper is concluded with brief conclusion.
Relationship between national and international law:
The Vienna Convention on the Law of Treaties was concluded in 1969, and in 1980 this treaty
was entered into force. It must be noted that the first sentence of the para 13 stated the pacta sunt
servanda principle in international law. As per this principle, Article 26 of VCLT defines the
binding nature of VCLT3 and this article further states that if any country signed any treaty then
such treaty is binding on the country, and the country must performed the stated obligations in
good faith. One important way to compile with the obligations stated in treaty is to ensure that
domestic laws of the country are consistent with the obligations stated in treaty and imposed on
1 Vienna Convention on the Law of Treaties- Article 27.
2 Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 229
3 Vienna Convention on the Law of Treaties- Article 26.
Introduction:
Relationship between international and national law in New Zealand is described on the basis of
dualist system, and as per this theory international law and national law drives on different
planes. For the purpose of forcing the law, the provisions of treaties must be incorporated into
legislation through parliament. However, the method through which Courts uses the international
instruments also exposes the language related to dualism. As stated in article 27 of Vienna
Convention on the Law of Treaties1 states the provisions related to internal laws and their
observance on treaties. However, in Case Ashby v Minister of Immigration [1981] 1 NZLR
222, Richardson, J stated at p 2292, Court stated that if provisions of the domestic laws are clear
then such provisions must be given effect in our Courts no matter whether such provisions
complied with the New Zealand’s international obligations or not.
This paper critically evaluates the relationship between international law and domestic law in
context of these two conflicting statements. Lastly paper is concluded with brief conclusion.
Relationship between national and international law:
The Vienna Convention on the Law of Treaties was concluded in 1969, and in 1980 this treaty
was entered into force. It must be noted that the first sentence of the para 13 stated the pacta sunt
servanda principle in international law. As per this principle, Article 26 of VCLT defines the
binding nature of VCLT3 and this article further states that if any country signed any treaty then
such treaty is binding on the country, and the country must performed the stated obligations in
good faith. One important way to compile with the obligations stated in treaty is to ensure that
domestic laws of the country are consistent with the obligations stated in treaty and imposed on
1 Vienna Convention on the Law of Treaties- Article 27.
2 Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 229
3 Vienna Convention on the Law of Treaties- Article 26.
Law 3
the country by the treaty. However, second sentence of para 13 states that article 27 is relevant
in this context and not the article 264.
Article 27 of the VCLT states different purposes and as per this article party cannot use its
internal laws as justification in context of contravention of international law. In other words,
when country contravenes its obligations defined under the treaty then it is not possible or party
to use its domestic law as defense. It must be noted that this principle is also defined under the
Article 3 of the International Law Commission (ILC) Articles of State Responsibility. For
effective working, it is necessary that party must have clear understanding of international law
and its relation with domestic law. There are number of countries where international law
without any transformation considered as the law of the land, but some countries are also there
which give preference to their domestic law.
Implementation of treaties and its effect:
It is not possible for executive who signs the treaty to change the domestic law, but it does not
mean that Courts cannot use the provisions of international law in their judgments if parliament
does not enacted these laws in the domestic laws. As per the practice related to international law
there are number of representative of the states who have authority to adopt the international
treaty. However, some other officials also have authority to negotiate and adopt the treaty. These
functions are the functions of executives, and this principle is cleared in case law Attorney-
General for Canada v Attorney-General for Ontario [1937] AC 326, 347–3485.
4 Prabhash Ranjan & Farheen Ahmad, (2016). Is the Supreme Court Confused About the Application of
International Law?, < https://thewire.in/53930/supreme-court-international-law/>, Accessed on 13th October
2017.
5 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–348.
the country by the treaty. However, second sentence of para 13 states that article 27 is relevant
in this context and not the article 264.
Article 27 of the VCLT states different purposes and as per this article party cannot use its
internal laws as justification in context of contravention of international law. In other words,
when country contravenes its obligations defined under the treaty then it is not possible or party
to use its domestic law as defense. It must be noted that this principle is also defined under the
Article 3 of the International Law Commission (ILC) Articles of State Responsibility. For
effective working, it is necessary that party must have clear understanding of international law
and its relation with domestic law. There are number of countries where international law
without any transformation considered as the law of the land, but some countries are also there
which give preference to their domestic law.
Implementation of treaties and its effect:
It is not possible for executive who signs the treaty to change the domestic law, but it does not
mean that Courts cannot use the provisions of international law in their judgments if parliament
does not enacted these laws in the domestic laws. As per the practice related to international law
there are number of representative of the states who have authority to adopt the international
treaty. However, some other officials also have authority to negotiate and adopt the treaty. These
functions are the functions of executives, and this principle is cleared in case law Attorney-
General for Canada v Attorney-General for Ontario [1937] AC 326, 347–3485.
4 Prabhash Ranjan & Farheen Ahmad, (2016). Is the Supreme Court Confused About the Application of
International Law?, < https://thewire.in/53930/supreme-court-international-law/>, Accessed on 13th October
2017.
5 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–348.
Law 4
On the other side of the coin, performance related to obligations of treaty involves changes made
in international law, and this requires legislature actions. In must be noted that practically, treaty
is considered as immediate result of the negotiation occurred between the representatives of the
two states or the conference conducted by interested states on particular matter, or within any
particular international framework which might be universal or regional in nature. Almost 30
treaties were enforced and these treaties take effect at international level on the basis of their own
terms.
However, it must be noted that signature usually represents the concrete expression of an
intention to ratify the treaty in future, but situation is different in case of more complex treaties
as final acceptance of treaty is conveyed when substantial changes are done in policies of
government and national law. It must be noted that text may be established by signature but
agreement does not become binding in nature unless state take further actions to ratify the
contract. It must be noted that various times ratification of treaty is considered as acceptance or
approval and it should not be mistaken in implementation of provisions of treaty in national law.
It must be noted that binding obligations in respect of treaty is created only between the
signatory parties6.
Impact of international law over national law:
In case of Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA)7, responsibility is
imposed on Court to consider the role of international instruments in domestic law, especially in
those cases when international instrument deals with the human rights for the purpose of
determining the obligations and principles of treaty in domestic law. International judicial
6 New Zealand Law Commission, Part I INTERNATIONAL LAW AND THE LAW OF NEW ZEALAND, <
http://www.nzlii.org/nz/other/nzlc/report/R34/R34-Part.html#Heading117>, Accessed on 13th October 2017.
7 Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA).
On the other side of the coin, performance related to obligations of treaty involves changes made
in international law, and this requires legislature actions. In must be noted that practically, treaty
is considered as immediate result of the negotiation occurred between the representatives of the
two states or the conference conducted by interested states on particular matter, or within any
particular international framework which might be universal or regional in nature. Almost 30
treaties were enforced and these treaties take effect at international level on the basis of their own
terms.
However, it must be noted that signature usually represents the concrete expression of an
intention to ratify the treaty in future, but situation is different in case of more complex treaties
as final acceptance of treaty is conveyed when substantial changes are done in policies of
government and national law. It must be noted that text may be established by signature but
agreement does not become binding in nature unless state take further actions to ratify the
contract. It must be noted that various times ratification of treaty is considered as acceptance or
approval and it should not be mistaken in implementation of provisions of treaty in national law.
It must be noted that binding obligations in respect of treaty is created only between the
signatory parties6.
Impact of international law over national law:
In case of Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA)7, responsibility is
imposed on Court to consider the role of international instruments in domestic law, especially in
those cases when international instrument deals with the human rights for the purpose of
determining the obligations and principles of treaty in domestic law. International judicial
6 New Zealand Law Commission, Part I INTERNATIONAL LAW AND THE LAW OF NEW ZEALAND, <
http://www.nzlii.org/nz/other/nzlc/report/R34/R34-Part.html#Heading117>, Accessed on 13th October 2017.
7 Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA).
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Law 5
community had no doubts on its role, and at the Commonwealth Judicial Colloquium in 1998 at
Bangalore the principles were re-formulated which include following statements:
It is the duty of an independent, impartial and well-qualified judiciary which is also
assisted by independent and well trained legal professionals for applied national
constitution and ordinary legislation in harmony with international human right codes and
treaties, and also to develop the common law in consistent with the provisions and
principles of the international law8.
In other words, it can be said that duty is imposed on Courts to applying the national laws in the
state with the harmony in the provisions of international law9.
Examination of relationship:
While analyzing the relationship between the two, it is necessary to evaluate the issue between
the dualism and monism. Both the factors recognize the presence of international and domestic
law. The question related to this issue must be assessed on the basis of legal orders made by the
Courts such as any legal order which supersede the other law, and whether both international and
domestic law exists cooperatively or not?
As per the concept of dualism, there is clear difference between the domestic and international
law and this doctrine recognize them as separate a legal order which regulates different matters.
This means that international law determines the connection between the sovereign states, but
domestic law determines the rights of person and bodies within that sovereign state. Therefore, it
becomes necessary to highlight that under this approach neither the legal order has power to
8 Brennan, “The Role and Rule of Domestic Law in International Relations” (1999) 10 Public Law PLR 185.
9 Rt. Hon. Dame Sian Elias, GNZM, Chief Justice of New Zealand, (2000) “the impact of international conventions on
domestic law”, < http://www.courtsofnz.govt.nz/speechpapers/Speech10-03-2000.pdf>, Accessed on 13th October
2017.
community had no doubts on its role, and at the Commonwealth Judicial Colloquium in 1998 at
Bangalore the principles were re-formulated which include following statements:
It is the duty of an independent, impartial and well-qualified judiciary which is also
assisted by independent and well trained legal professionals for applied national
constitution and ordinary legislation in harmony with international human right codes and
treaties, and also to develop the common law in consistent with the provisions and
principles of the international law8.
In other words, it can be said that duty is imposed on Courts to applying the national laws in the
state with the harmony in the provisions of international law9.
Examination of relationship:
While analyzing the relationship between the two, it is necessary to evaluate the issue between
the dualism and monism. Both the factors recognize the presence of international and domestic
law. The question related to this issue must be assessed on the basis of legal orders made by the
Courts such as any legal order which supersede the other law, and whether both international and
domestic law exists cooperatively or not?
As per the concept of dualism, there is clear difference between the domestic and international
law and this doctrine recognize them as separate a legal order which regulates different matters.
This means that international law determines the connection between the sovereign states, but
domestic law determines the rights of person and bodies within that sovereign state. Therefore, it
becomes necessary to highlight that under this approach neither the legal order has power to
8 Brennan, “The Role and Rule of Domestic Law in International Relations” (1999) 10 Public Law PLR 185.
9 Rt. Hon. Dame Sian Elias, GNZM, Chief Justice of New Zealand, (2000) “the impact of international conventions on
domestic law”, < http://www.courtsofnz.govt.nz/speechpapers/Speech10-03-2000.pdf>, Accessed on 13th October
2017.
Law 6
challenge and alter the rules of other legal order. For this purpose, international law is used in the
domestic Courts only through the way of domestic law which imposed right to that effect only,
and does not contrive the domestic law. As per this principle, if any conflict arises between the
provisions of international and domestic law the in such case domestic law will prevail. However
it must be noted that this approach justified the statement made by Richardson, J stated in Case
Ashby v Minister of Immigration [1981] 1 NZLR 222, that domestic laws are clear then such
provisions must be given effect in our Courts no matter whether such provisions complied with
the New Zealand’s international obligations or not10.
On the other hand, approach related to monism stated that international law is Supreme over the
national law, and it determined the overriding effect of international law over national law. This
doctrine is applicable in those cases when both national and international law becomes the part
of one system on the basis of factors which are based on general facts of fairness. This approach
is usually translates a theory which is alternative in nature and stated that both international and
domestic law are prevail by general legal factor which based on the rules related to natural law.
As per the monist’s believer, states usually represent the options of individuals who are
supporting international law. However, this theory provides the legal and equitable grounds to
support its facts which directly contradict the established legal rules of national law. This can be
understood through example which states that for determining the position of the state’s law
consider the entities which are economic such as corporations have a legal shield11.
10 H. Triepel; Völekerrecht ud Landesrecht (1899); id., p.1.
11 H. Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green, and Co, London,
1927), p.58; S.Engel; H.Kelsen; Law, state and international legal order: essays in honour of Hans Kelsen (University
of Tennessee Press, Knoxville, TN, USA,1964), p.308-16.
challenge and alter the rules of other legal order. For this purpose, international law is used in the
domestic Courts only through the way of domestic law which imposed right to that effect only,
and does not contrive the domestic law. As per this principle, if any conflict arises between the
provisions of international and domestic law the in such case domestic law will prevail. However
it must be noted that this approach justified the statement made by Richardson, J stated in Case
Ashby v Minister of Immigration [1981] 1 NZLR 222, that domestic laws are clear then such
provisions must be given effect in our Courts no matter whether such provisions complied with
the New Zealand’s international obligations or not10.
On the other hand, approach related to monism stated that international law is Supreme over the
national law, and it determined the overriding effect of international law over national law. This
doctrine is applicable in those cases when both national and international law becomes the part
of one system on the basis of factors which are based on general facts of fairness. This approach
is usually translates a theory which is alternative in nature and stated that both international and
domestic law are prevail by general legal factor which based on the rules related to natural law.
As per the monist’s believer, states usually represent the options of individuals who are
supporting international law. However, this theory provides the legal and equitable grounds to
support its facts which directly contradict the established legal rules of national law. This can be
understood through example which states that for determining the position of the state’s law
consider the entities which are economic such as corporations have a legal shield11.
10 H. Triepel; Völekerrecht ud Landesrecht (1899); id., p.1.
11 H. Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green, and Co, London,
1927), p.58; S.Engel; H.Kelsen; Law, state and international legal order: essays in honour of Hans Kelsen (University
of Tennessee Press, Knoxville, TN, USA,1964), p.308-16.
Law 7
Followers of both the approaches that are monism and dualism discuss the methods related to the
connection between domestic and international law, but academic views impose challenge on the
presumption made by both the followers that both legal orders must share common field of
operation. As per the view of Sir Fitzmaurice’s, both the systems work in different spheres which
result in equal degree of supremacy and also prevent the both legal orders entering into conflict.
Therefore, when state does not act as per the provisions stated under international law then it
does not arise the issue related to conflict of law but it arise the issue related to conflict of
obligations. As stated, consequences will relate to the position of state in context of international
political scene but will not reduce the validity of national laws of the state. In context of relation
between the state obligation and municipal law the legal position is not clear. This factor justified
the approach of Article 27 that state cannot use the defense of national law for justifying the
breach of international law. This rule is used as example in the matter of Alabama
Claimsarbitration when United States award damages against the Great Britain.
In case France v Switzerland (1932), PCIJ, Ser A/B12, it was decided by the Court that France
cannot rely on its own legislation for the purpose of limiting the scope of its obligation under
international law. As per the advisory opinion in the Greco-Bulgarian Communities case, it was
stated that principle of international law was accepted which states that relationship between the
powers who are also the contracting party to the treaties; it is not possible for them to ignore the
provisions of international law because of national law.
Conclusion:
After considering the above facts it is clear that international norms are not directly enforceable
till domestic laws recognize the effect of these laws. In practice, court gives emphasis to the
12 France v Switzerland (1932), PCIJ, Ser A/B.
Followers of both the approaches that are monism and dualism discuss the methods related to the
connection between domestic and international law, but academic views impose challenge on the
presumption made by both the followers that both legal orders must share common field of
operation. As per the view of Sir Fitzmaurice’s, both the systems work in different spheres which
result in equal degree of supremacy and also prevent the both legal orders entering into conflict.
Therefore, when state does not act as per the provisions stated under international law then it
does not arise the issue related to conflict of law but it arise the issue related to conflict of
obligations. As stated, consequences will relate to the position of state in context of international
political scene but will not reduce the validity of national laws of the state. In context of relation
between the state obligation and municipal law the legal position is not clear. This factor justified
the approach of Article 27 that state cannot use the defense of national law for justifying the
breach of international law. This rule is used as example in the matter of Alabama
Claimsarbitration when United States award damages against the Great Britain.
In case France v Switzerland (1932), PCIJ, Ser A/B12, it was decided by the Court that France
cannot rely on its own legislation for the purpose of limiting the scope of its obligation under
international law. As per the advisory opinion in the Greco-Bulgarian Communities case, it was
stated that principle of international law was accepted which states that relationship between the
powers who are also the contracting party to the treaties; it is not possible for them to ignore the
provisions of international law because of national law.
Conclusion:
After considering the above facts it is clear that international norms are not directly enforceable
till domestic laws recognize the effect of these laws. In practice, court gives emphasis to the
12 France v Switzerland (1932), PCIJ, Ser A/B.
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Law 8
national laws and not the international laws and very rare cases are there in which international
laws are supersede. Recognition of the provisions of international law in the national law
actually disturbs the provisions of center line between the dualism and monism approach.
BIBLIOGRAPHY
Websites
Prabhash Ranjan & Farheen Ahmad, (2016). Is the Supreme Court Confused About the
Application of International Law?, < https://thewire.in/53930/supreme-court-international-law/>,
Accessed on 13th October 2017.
Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–348.
national laws and not the international laws and very rare cases are there in which international
laws are supersede. Recognition of the provisions of international law in the national law
actually disturbs the provisions of center line between the dualism and monism approach.
BIBLIOGRAPHY
Websites
Prabhash Ranjan & Farheen Ahmad, (2016). Is the Supreme Court Confused About the
Application of International Law?, < https://thewire.in/53930/supreme-court-international-law/>,
Accessed on 13th October 2017.
Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–348.
Law 9
New Zealand Law Commission, Part I INTERNATIONAL LAW AND THE LAW OF NEW
ZEALAND, < http://www.nzlii.org/nz/other/nzlc/report/R34/R34-Part.html#Heading117>,
Accessed on 13th October 2017.
Rt. Hon. Dame Sian Elias, GNZM, Chief Justice of New Zealand, (2000) “the impact of
international conventions on domestic law”, <
http://www.courtsofnz.govt.nz/speechpapers/Speech10-03-2000.pdf>, Accessed on 13th October
2017.
Case law
Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 229.
Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA).
France v Switzerland (1932), PCIJ, Ser A/B.
Journals
Brennan, “The Role and Rule of Domestic Law in International Relations” (1999) 10 Public Law
PLR 185.
H. Triepel; Völekerrecht ud Landesrecht (1899); id., p.1.
H. Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green, and
Co, London, 1927), p.58; S.Engel; H.Kelsen; Law, state and international legal order: essays in
honour of Hans Kelsen (University of Tennessee Press, Knoxville, TN, USA,1964), p.308-16.
Statute
Vienna Convention on the Law of Treaties- Article 27.
Vienna Convention on the Law of Treaties- Article 26.
New Zealand Law Commission, Part I INTERNATIONAL LAW AND THE LAW OF NEW
ZEALAND, < http://www.nzlii.org/nz/other/nzlc/report/R34/R34-Part.html#Heading117>,
Accessed on 13th October 2017.
Rt. Hon. Dame Sian Elias, GNZM, Chief Justice of New Zealand, (2000) “the impact of
international conventions on domestic law”, <
http://www.courtsofnz.govt.nz/speechpapers/Speech10-03-2000.pdf>, Accessed on 13th October
2017.
Case law
Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 229.
Tavita v. Minister of Immigration [1994] 2 NZLR 257 (CA).
France v Switzerland (1932), PCIJ, Ser A/B.
Journals
Brennan, “The Role and Rule of Domestic Law in International Relations” (1999) 10 Public Law
PLR 185.
H. Triepel; Völekerrecht ud Landesrecht (1899); id., p.1.
H. Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green, and
Co, London, 1927), p.58; S.Engel; H.Kelsen; Law, state and international legal order: essays in
honour of Hans Kelsen (University of Tennessee Press, Knoxville, TN, USA,1964), p.308-16.
Statute
Vienna Convention on the Law of Treaties- Article 27.
Vienna Convention on the Law of Treaties- Article 26.
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