The Supremacy of International Law? – Part One

Editor’s Note: This is the text of the 2^nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).

My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.

As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.

But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.

The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon.

I do not propose to tread further into this particular thicket. For a former Foreign Office Legal Adviser, speaking in the Residence of the British Ambassador in The Hague, the risks of public mischaracterisation of anything that I might have to say on this topic are very great. And I am an internationalist who believes in a great and distinctive British contribution to international life as part of Europe and its appreciation of fundamental rights. I begin with the EU and the European Convention on Human Rights simply to frame the discussion, because it is about the supremacy of international law. And the debates that we are having now in Europe presage similar debates, current and to come, about international law more generally. My focus, though, is on the relationship between international law and national law more traditionally conceived, lodged in the monist-dualist dichotomy that all students of international law hear about in the second or third lecture of their undergraduate studies.

Just as we begin life as international lawyers learning about monism and dualism, and everything else in between, so are we also told that the issue is more complex than the headline debate suggests. The relationship between international law and national law changes shape depending on the vantage point from which the subject is viewed. The Heisenberg observer effect principle in action, in a legal context! Viewed from the perspective of national law and constitutionalism, it is national law and the constitution that defines the framework – such as the requirements to be satisfied before a government can assume international treaty commitments; the place of treaties in the national legal system; the reception of customary international law; the deference or otherwise that national courts will or should give to international law, and so on.

From the perspective of international law, the picture changes. The application of international law hinges on the consent of States, whether express or implied. Once a State assumes a treaty commitment, it is bound by that commitment, and the uncontroversial principle reflected in Article 27 of the Vienna Convention on the Law of Treaties provides that a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

As for customary international law, which arises from the conduct of States undertaken out of a sense of legal obligation, in Kelsen’s conception of the unity of international and national law, this is the font of the sovereign authority of States. Sovereignty must accordingly be exercised, including internally, in accordance with the dictates of international law from whence it was born. On this view, therefore, the supremacy of international law follows from the appreciation that international law is the ultimate source of a State’s sovereign authority to exercise jurisdiction.

Given these competing vantage points, the debate about the relationship of international law and national law, and the supremacy of international law, sometimes takes on a surreal quality. Gerald Fitzmaurice sought to capture that quality by analogising the debate to one over the supremacy of English law and French law, each being supreme in its own sphere [“General Principles of International Law Considered from the Standpoint of the Rule of Law”, (1957-II), 92 Recueil Des Cours 1, 71-72]. Supremacy was not, on his conception, an issue of content but rather of field of operation. The systems of international law and national law could not, did not, on his view, come into conflict because they occupy different realms. And the more prosaic question of how to resolve a conflict of obligations that had arisen would fall to be addressed by reference to the rules applicable in the forum in which the conflict was to addressed, with the acknowledged consequence that a State that failed, for reasons of the supremacy of its national law, to comply with its international obligations would have committed a breach of its international obligations. Fitzmaurice’s conception is not a theory of reconciliation, however, only a description of divergence. It does not address how, or whether, divergence should be reconciled. This is the more interesting discussion.

Hersch Lauterpacht’s conception of the unity of the law was more purpose driven, born of a sense of the ultimate focus of all law and the need to constrain the unbridled exercise of sovereignty. The supremacy of international law was required to guard against the abuse of human rights. International law was the touchstone of principle, establishing a standard with which States were required to comply.

Amongst the philosophical challenges to a conception of the supremacy of international law is the requirement for the completeness of the law and the prohibition of a non liquet, the failure or the inability of the international judge to resolve an issue before him or her on the ground that there is no relevant and applicable law. Lauterpacht was a proponent of both ideas, devoting a good portion of this seminal work on The Function of Law in the International Community to the issue of the prohibition of non liquet and developing the conception of municipal law analogies as a source of international law, under the heading of “general principles of law”. Both of these elements of Lauterpacht’s analysis were a significant contribution to the theory of the completeness of international law. And, with the endlessly discoverable and malleable content of customary international law, of general principles of international law and, as a subsidiary source of international law, of the writings of publicists, international law could have pretentions to completeness. Coupled with the principle against non liquet, the international judge would always have something to say. And, by way of the common law vehicle of the development of international law through the decisions of international courts and tribunals, international law found itself well able to develop itself from loose outposts of legal obligation into a system of law. Coupled with this, a conception of the supremacy of international law was, and remains, a powerful tool to turn international law from a set of principles shaping the behaviour of States to a system of hard rules regulating their conduct.

The debate today about the supremacy of international law is a mark of the success and the effectiveness and the authority of international law. It does not, in my view, contrary to what some have suggested, signal the weakness of international law but rather its strength and its engagement with all aspects of life. In the United Kingdom, international law frequently forms the essential basis of applications for judicial review, to hold the government to account for some or other alleged transgression. Within some limits, our courts are sensitive to such claims. International law is often, and increasingly, an unexceptional component of other claims, often the stated font of the legal obligation that is said to apply between the parties. With variations, the same approach is evident in other national legal systems. Within limits, and shaped by principles of both national and international law, there is a growing systemic alignment, engagement and interaction between international law and national laws that, at least to my mind, would make impossible the English law – French law spheres of operation analogy that Fitzmaurice articulated in 1957.

This is the doctrinal debate. What about the reality? Is the issue of the supremacy of international law real, tangible? Are there hard cases? Are there adequate principles and theories of coordination to address the difficulties?

It is a feature of this debate that it almost invariably only surfaces into the light in the context of court proceedings, with protagonists on all sides resting their cases on competing judicial and arbitral dicta. The debate about supremacy has thus turned to date almost exclusively either on the fact and outcome of litigation or on appreciations of jurisprudential abstraction.

I have said something about the theories. What about hard cases – and there are of course hard cases. The Kadi cases before the EU courts (although here acting akin to a court of national jurisdiction) questioned the supremacy of international law in circumstances of what were perceived to be due process shortcomings in UN Security Council mandated counter-terrorism sanctions. The Al-Jedda judgment of the European Court of Human Rights, again acting akin to a court of national jurisdiction, while treading carefully in its treatment of the powers of the UN Security Council and its appreciation of Article 103 of the UN Charter, essentially required greater precision of international law when it comes to authorising military detention. The Italian Constitutional Court, in its consideration of the measures taken by Italy to give effect to the ICJ’s Jurisdictional Immunities judgment, called into question the correctness of the ICJ judgment and ultimately, implicitly, the ICJ’s authority as the dispositive voice on questions of international law. There are many other cases to choose from, notably concerned with issues of fundamental rights, including access to remedies and due process safeguards. The array of national security cases that have come before the courts in many jurisdictions over recent years have often put governments, exercising claimed rights under national law in exercise of their obligation to keep their communities safe, on a collision course with what are seen as detached international “judges” of international law, whether they sit in the EU courts and the European Court of Human Rights, here in The Hague or in the treaty monitoring bodies in Geneva under the International Covenant on Civil and Political Rights (the ICCPR) and the Convention Against Torture. On the horizon are similar debates concerning the International Criminal Court, with its overarching competence to interpret the crimes of which, by its Statute, it is seised. Although this is not a matter of which the ICC is seised, we have already seen harbingers of this debate in the well informed and thoughtful comments that have followed the publication of the U.S. Department of Defense report into the attack on the MSF hospital in Kunduz in Afghanistan. The issue here is how to interpret the prohibition on the intentional targeting of civilians and whether the controlling test should be that of U.S. law, in common with other common law appreciations, or whether international law might adopt a wider conception of the rule, drawing perhaps also on civilian appreciations of intention that incorporate elements of recklessness and perhaps more.

In a litigation context, both national and international law have developed principles of coordination and reconciliation. I have already mentioned the principle reflected in Article 27 of the Vienna Convention on the Law of Treaties, that a State may not invoke provisions of its national law to justify a failure to perform a treaty. There are other principles as well.

Before national courts, there is commonly an interpretative presumption of national law that legislation should, if it is possible to do so, be interpreted so as to comply with a State’s international obligations. In U.S. law this goes by the appealing name of the Charming Betsy doctrine, named after American Merchant vessel that was caught up in a prize seizure that eventually came before the U.S. Supreme Court, which held that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. English law, and other national systems, have a similar principle, although not all so happily named.

Looking further, the European Court of Human Rights, in common with other international courts and tribunals, has developed the concept of a margin of appreciation, affording a latitude of action to States in the interpretation and application of their international obligations. This is sometimes described as a principle of deference, although that suggests more latitude than such courts often seeming willing to give.

The principle of complementarity, going to the admissibility of a case before the International Criminal Court pursuant to Article 17 of its Statute, addresses the systemic relationship between national and international processes in terms that ultimately leave, must leave, a margin of appreciation to national procedures and national interpretations of law.

More generally, the principle of exhaustion of local remedies also has in mind the coordination and reconciliation of national and international processes and laws.

Against this backdrop, the question that arises is whether the principles and mechanisms that we have by way of coordination and reconciliation are enough – and whether the theory that addresses these issues adequately captures the changing relationship between and engagement of international law and national law.

In the wake of such cases as Kadi, Al- Jedda and other fundamental rights cases, there has been a growing scholarship by international lawyers that has begun the process of re-conceiving the relationship between international law and national law on the issue of supremacy, at least when issues of fundamental rights are in question. André Nollkaemper has written under the title of “Rethinking the Supremacy of International Law”. Anne Peters has described the issue as “Supremacy Lost: International Law Meets Domestic Constitutional Law”. There are many other thoughtful contributions.

I agree with the sentiment that they are expressing. My sense too is that more thinking is required on these issues.

It is no part of my thesis that the application of international law in the national sphere should be curtailed or that the application and effect of international law should be undermined. But the mid-20^th century theories, however erudite their authors, do not fit the reality of contemporary international life. And, questions of the democratic touchstone of the law and the accountability of legislators and decision-makers, including courts, and the perception that they are not rooted in the communities that they address, is important.

There are, I think, other principles that can be drawn upon – of national law and regional law – to address this matter. Before I turn to these, though, I would like to step back a moment and cast a wider gaze on the engagement of international law in the national sphere, looking beyond those cases of which courts and tribunals have been seised. Part of the challenge, in my view, of the approach to the subject of supremacy is the one-dimensional prism of litigation through which the issue is almost invariably seen.

In his 1957 Hague lectures on General Principles of International Law, Gerald Fitzmaurice, in the analysis to which I referred earlier analogising the relationship between national law and international law to that between English law and French law, took the view that the systems of international law and national law do not address the same spheres of activity; do not occupy the same normative space.

If ever this was an accurate appreciation, it is no longer the case, even if there may be parts of the law of both systems that do not, or only seldom, intersect at the level of doctrine and practice.

Soon after leaving the FCO in mid-2011, I published a small piece under the title of “The Secret Life of International Law” in which I addressed the international law of the foreign ministry legal adviser and the invisible life of international law that happens day-in and day-out concerning the interpretation and application of international law in the advice given to governments – advice that, in some shape and form, is translated into the conduct of States out of a sense of legal obligation. I concluded that piece with the following observation:

“As an international lawyer, the proposition is in our DNA that international law prevails over domestic law. That is the notion of supremacy, at least as it applies in the international space, and that is the approach that one would expect the International Court of Justice to take.

In practice, however, the position may be rather different, particularly in areas concerned with national security, because a state is likely to be driven by appreciations of its own law, even if its own law is informed by international law. And we, as international lawyers, in my view, need a much more sophisticated appreciation of how national law and international law interact than we have today. We cannot simply rest on the peg of supremacy. It does not adequately and sufficiently address the issues, and it means that our voice is less weighty when it comes to discussion of these matters.”

This remains my view today. And on the issue of the weightiness of voice, when the Legal Adviser is sitting around the table with the Political Director and the Foreign Secretary and others on some issue of pressing policy imperative, and on which national law, well developed and thoughtful, addresses the issue, it is not sufficient for the lawyer to have in his or her armoury only the proposition that international law takes a different view and that international law is supreme. Something more granular and compelling is required.