The Supremacy of International Law? – Part Two

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 two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

A key aspect of this Guidance, which was eventually published by Prime Minister Cameron’s Coalition Government in July 2010, was the approach that was required in circumstances in which there was an appreciation of a risk of torture, cruel, inhuman or degrading treatment (CIDT) of the detainee in question by the custodial State.

The addressees of the Consolidated Guidance were to be intelligence officers and military personnel, not courts and lawyers. The Consolidated Guidance had to be comprehensible both to its users and to the public. It had to reflect and address the United Kingdom’s legal obligations and the obligations of its officials and agents. The source of those obligations was not the principal material consideration. It was the content of the obligations that was controlling.

A review of relevant and applicable legal rules identified that the UK was bound by at least 10 separate international law instruments that addressed torture and CIDT in different contexts, all of which came within the circumstantial purview of the Consolidated Guidance. These included the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, the four Geneva Conventions of 1949, the two Additional Protocols of 1977, and the Statute of the International Criminal Court. In addition to these instruments, customary international law was also relevant.

Beyond these international instruments, obligations of a similar kind also arose for the United Kingdom, for the Government and for its officials and agents in consequence of at least 10 separate statutes, a number of which were not associated with any treaty or other instrument of international law, as well as under the Common Law. The statutes went back to the Criminal Jurisdiction Act of 1800 and included criminal law statutes such as the Offences Against the Person Act of 1861 and the Criminal Justice Act of 1948, predating any relevant and applicable treaty obligation.

Looking across these two bodies of legal principles, while there were elements of a close coincidence of purpose, in the sense that one could a divine a common kernel, a common spirit of the laws, there were also important divergences of note, not least between the various textual definitions and jurisprudential interpretations of torture. The ICC definition of torture, for example, in Article 7(2)(e) of the Statute and its Elements of Crime, is not the same as that given in Article 1 of the Convention Against Torture. The relevant open textured provisions of the ECHR and the ICCPR have also evolved differently through the jurisprudence of the European Court of Human Rights and the opinions of the Human Rights Committee.

A number of appreciations flow from this example. The first is that, as a practical matter, for advisory purposes, what was relevant was the content of relevant and applicable obligations, not their provenance. Second, insofar as the question is one of the content rather than provenance of legal obligations, issues of supremacy arise only tangentially, if at all. Third, insofar as there is a divergence, whether concordant or discordant, between the various sources of a relevant and applicable obligation, the coherent and effective application of the law requires a degree of considered appreciation by the State in question. Fourth, it follows from this that the adjudication of claims based in an alleged breach of the obligation in question must sensibly recognise and accept that the State has a latitude when it comes to the interpretation and application of the law. Any other conclusion would mean that the adjudication of responsibility would be prey and prone to the whimsy of the court or tribunal that was seised of the matter, there being no court of general jurisdiction that would have competence in respect of all of these bodies of law. Fifth, in the exercise of its appreciation, it follows, in my view, that the State must be entitled to favour and follow the formulations of its own law, broadly concordant with its international obligations, without this giving rise to a breach of international law.

This is not an isolated example. Such questions arise across the range of fundamental rights governed by human rights treaties. They also arise, and promise to arise increasingly, in the field of criminal responsibility, where the conduct in question has an international dimension. Immunity from jurisdiction is another area of law where such considerations may be relevant. And perhaps most significant of all, given the potential reach of the principle, is in the area of complicity or aiding and assisting or secondary participation, which straddles the criminal and the civil. This, in my experience, is the single most important and wide ranging principle, and challenging in its interpretation and application, relevant to the responsibility of a State.

A common feature of all these areas of law is that they have parallel and intertwined fonts in both national and international law. While the law – generically described – may be in the process of fusing, as a matter of long term appreciation, we are a long way from a unity of law. We are faced, therefore, in such areas of law with potentially competing strands of law on the same subject matter derived from different sources and subject to different rules on creation, change, breach, etc.

This brings me back to the need for principles and modalities of coordination, and for a more refined theory of the relationship between international law and national law that does not fall at the alter of supremacy.

Of course, the view may be taken that there is no need for a holistic approach to this issue; that there is no real, systemic problem, as opposed to ad hoc issues of the application of obligations; and that the organic ad hoc resolution of difficulties by courts is a perfectly acceptable way in which to proceed.

I am not attracted by such a view. It is antithetical to the discipline, predictability and certainty of the law. It fails to address hard cases. It does not engage with the reality of the daily life of international law at the heart of government. It is unsatisfying intellectually. It leaves the outcome prone to the varying wisdom of individual judges and those assisting them through submissions in the proceedings.

So, given this view, where do we turn? On the theory of the matter, there have been a number of proposals for reconceiving the relationship between international and national law, and of rethinking supremacy. A conception of international law and national law in pluralistic, non-hierarchical terms advanced by some is appealing. Visions of systemic convergence, or international law as coordination, and of systemic communication, also address aspects of the debate. One author, harkening back to Jan Christian Smuts, has suggested the philosophical approach of Holism, which I suppose is simply Kelsen’s or Lauterpacht’s natural law view in another guise. Looking across these theories, my inclination would be for a framework that better marries the notions of cooperative constitutionalism and the pragmatic coordination that is a feature of the daily engagement of international law in the national space. Whether this is described as pragmatic constitutionalism or pluralist coordination matters not.

Looking beyond the theory, what are the principles and modalities that might usefully be developed, or drawn from elsewhere and refined for better application in the international system. There are a number, in my view, none of which are novel. I do not propose here to offer more than an à la carte menu for those who may be interested to consider and explore the issues further.

A starting point would be the development of a theory of an allocation of competence between national law and international law, including possible presumptive reserves domain of national law and international law. Federal constitutions adopt just such an approach. The Tenth Amendment to the U.S. Constitution provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Article 72(2) of the German Basic Law, in slightly different terms, also addresses the legislative competence of federal authorities.

The Treaty on European Union, in Article 5, develops these principles in an EU context that, given the international law, treaty-based dimension of the EU may be interesting for international law. This Article is most often quoted for its principle of subsidiarity but it contains other principles as well. Article 5(1) provides:

“The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.”

Conferral, subsidiarity and proportionality.

Detractors of the EU would contend, perhaps, that these principles, in an EU context, are honoured more in the breach than in their observance. This is not a debate in which I need to engage. The principles seem to me to be sound and not an anathema to a system of international law that is less developed and less integrationist than the EU.

Article 5(2) defines the principle of conferral as requiring that the EU:

“shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

Article 5(3) defines the principle of subsidiarity as requiring that, in areas which do not fall within the exclusive competence of the EU, it:

“shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

Article 5(4) defines the principle of proportionality as requiring that the “content and form” of EU action “shall not exceed what is necessary to achieve the objectives of the Treaties”.

These principles are framed, and apply most readily, as principles of legislative competence. But they resonate in the interpretative sphere as well. And it does not take an overly creative legal mind to contemplate the development of principles based thereon to address issues of coordination and engagement between systems, bodies and rules of law that overlap in content (whether concordantly or discordantly) but differ in legislative source and on issues of systemic application.

Looking beyond rules concerned with the allocation of competence, international law has, internally to itself, poorly developed notions of hierarchy. The concept of jus cogens, of peremptory norms from which no derogation is permissible, is not well developed and is seen by some as too peremptory in its character. But notions of supremacy and systemic coordination require principles of hierarchy. We ought to think further about the articulation and refinement of principles that are fundamental to the rule of law. I do not here refer to fundamental rights, as this term is most frequently used to refer to core principles of human rights, but rather to principles that are intrinsic to the rule of law more generally, including the democratic character of law that is at the core of the concept of the rule of law.

Looking further, there are also concepts that, if better developed, may assist in providing greater granularity to the principle of margin of appreciation. The International Covenant on Social, Economic and Cultural Rights includes a principle of the progressive realisation of rights. Suitably refined, and with appropriate safeguards against abuse, this may assist in developing an approach that would be appropriate to the variable application of law. This is not, I emphasise, this is not intended as a sideswipe against the notion of the universality of international law. It is simply an acknowledgement that international law sometimes paints with a very broad brush on a canvass that requires greater finesse.

Let me conclude with three other possibilities. First, the approach taken by the German Constitutional Court years ago in respect of the supremacy of EU law over German constitutional fundamental rights, often described as the solange approach, seems to me to be well merited when it comes to addressing the relationship between national law and international law. As long as international law remains underdeveloped in a given key area of fundamental principle, it may well be appropriate that national law prevails. There are risks here, especially in an international system that lacks a coordinating legislative and judicial competence, but this is an approach that will appeal to national political leaders and cannot be lightly dismissed. The solange principle also works, potentially, in the other direction as well, namely, deference to international law in circumstances in which national law is lacking or underdeveloped, which is not at all uncommon.

Second, there may be mileage in exploring the approach adopted in the UK Human Rights Act to the application of the European Convention on Human Rights in the United Kingdom, as part of UK law. In the event of incompatibility between UK law and the ECHR, UK courts are required to make what is known as a Declaration of Incompatibility. The Declaration does not have the effect of striking down the national law in question but simply states that the national law is at odds with the Convention. Such an approach, again potentially available to both national and international courts, may assist in forging, over time, a greater coherence in and perhaps unity of law, and would certainly bring greater transparency to the relationship, between international law and national law.

Finally, let me mention the duty to give reasons. This is essential to the judicial process but it is not always observed in terms that give comfort to the addressees of the decision. Particularly in circumstances in which a national or international court or tribunal is considering a decision of a court or tribunal from the other sphere that is at the heart of the case, the duty to give sufficiently well developed reasons – adequate to a comprehension of the issues by a court or tribunal from another sphere that may be seised of the issues – ought to be viewed as an article of faith of juridical responsibility. If a margin of appreciation is to be afforded, or an appreciation on the allocation of competence understood, or any other coordinating principle taken into account, it must be fully explained.

Let me conclude these remarks with the following. An appreciation of the relationship between international law and national law, and of the debate about supremacy, resides in the detail of the law, not in broad-brush theories. My sense, as a practitioner at the coalface, is that international law is ever more part of the central firmament of government decision-making and conduct. What is in issue when it comes to the formulation of policy or the consideration of conduct is what law addresses the conduct in contemplation, viewed in its widest gaze. In this discussion, provenance is less important than content. Supremacy is in issue on the margins, and usually only comes to the forefront of the discussion when the matter is one of defending impugned conduct before the courts.

This being the case, international law and international lawyers can afford to move off their encampment defending the supremacy of international law. The doctrine of supremacy, hugely important in the formative years of international law, risks now becoming something of a distraction, at least in terms of the generality of the debate that has visited this issue until quite recently. Rethinking supremacy, and formulating more nuanced principles of coordination and reconciliation between international law and national law, both to address the hard cases and to come closer to an understanding of how these bodies of law actually interact in practice, is a worthwhile endeavour.