Renvoi to Domestic Law by Public International Law: A Review in Light of Recent Judicial and Arbitral Decisions

Document Type : Original Article

Author

Associate Professor, Department of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

10.48300/jlr.2022.361818.2174

Abstract

The assumption of independence of domestic and international law systems does not impede the relationship between these two systems, and in particular, the ability to apply international law in domestic law or the ability to apply domestic law in international law. In addition, from the perspective of international law, in the event of conflict between these two legal systems, the general rule of superiority of international law over domestic law prevails. This means that a State cannot evade its international obligations by relying on its own domestic laws or invoke these laws to justify acts contrary to international law. In other words, this general rule of customary international law is in fact a connecting point between international law and domestic law. On the basis of an effective interpretation of this rule, it can be considered that States have an obligation not to enact laws contrary to their international obligations and even to accord an un-waivable status to their international obligations in the hierarchy of domestic laws. The ability to apply domestic law by international law, or in other words, “renvoi” to domestic law, has taken many forms and some new dimensions in the opinions of the International Court of Justice and international arbitral awards.

Keywords

References

  • Books

    • Jamal Seifi, The Law of International Responsibility, Reflections on the Law of State Responsibility, 2021, Tehran, Shahre Danesh Publication. (in Persian)
    • Nasiri, Morteza and Kakhi, Morteza, Private International Law, Generalities, Citizenship, Residence (Aliens and Conflicts of Laws and Courts), Vols. 1 and 2, 2014, 29th Edition, Tehran Agah Publications. (in Persian)

     

    Articles

    • Crawford, James, (2013) “State Responsibility”, The General Part, Cambridge University Press, Cambridge. (in English)
    • Danesh Pajooh, Mostafa. "Analytical and Comparative Study of Ahla'a (renvoi) in Positive Law and Islam", Jurisprudential Research, Volume 18, No. 2, Summer 1401, pp . 638-664. (in Persian)
    • Douglas, Zachary, (2012) The International Law of Investment Claims, Cambridge University Press. (in English)
    • Fitzmaurice, Gerald, (1957) “The General Principles of International Law Considered from the Standpoint of the Rule of Law”, 92 Hague Recueil (II), 5. (in English)
    • Hamidzadeh, Farhad. "The Principle of Freedom of Will in Contracts”, Legal Thoughts, Third Year, No. 9, 2005, pp. 137-154. (in Persian)
    • Hepburn, Jarrod, (2017) “Domestic Law in International Investment Arbitration”, Oxford University Press, Oxford. (in English)
    • Jenks, CW, (1938) “The Interpretation and Application of Municipal Law by the Permanent Court of International Justice”, 19 British Yearbook of International Law, 67. (in English)
    • Kamto, Maurice, (2017) “The Status of Municipal Law before the World Court in Light of Recent Cases”, in Maluwa, Tiyanjana, du Plessis, Max, Tladi Dire, (Eds.), The Pursuit of a Brave New World in International Law, Essays in Honour of John Dugard , Leiden, Brill Nijhoff, 215. (in English)
    • Kaufmann-Kohler, Gabriel, (2005) “The Arbitrator and the Law: Does He/She know it? How and a Few More Questions” 21 Arbitration International, 631. (in English)
    • Kelsen, Hans, (1967) The Principles of International Law, 2nd Reinhart. (in English)
    • Kolb, Robert, (2014) “The Relationship between the International and Municipal Legal Order: Reflections on the Decision no 238/2014 of the Italian Constitutional Court”, 6 QIL, II, 5. (in English)
    • Mokarrami, Ali Mohammad. "negative conflict (of laws) in Iran and other countries", Legal Views, No. 1, pp. 104-133. (in Persian)
    • Musa Ghazvini, Gholamreza. "A Brief Look at Conflict of Law Issues in Private International Law with An Emphasis on Iranian Law", Two Quarterly Journals of Legal Knowledge and Research, Volume 1, No. 2, 2012, pp.  171-184. (in Persian)
    • Nollkaemper, Andre¢, (2012) National Courts and the International Rule of Law, Oxford University Press, Oxford. (in English)
    • O’Connell, D.P., (1960) “The Relationship between International Law and Municipal Law”, Georgetown Law Journal, 431-485. (in English)
    • Seifi, Jamal, (4 September 2003) “State-State Arbitration v. Investor-State Arbitration”, Oil Gas, Energy Law Journal (OGEL) 4, September, CEMPEL, University of Dundee, Scotland, pp. 1-7; also in Transnational Dispute Management (TDM), (2 May 2004) Vol. 1, Issue 2, (pp. 1-7). (in English)
    • Shaw, Malcom, (2017) International Law, Eight Edition, Cambridge University Press, Cambridge. (in English)
    • Starke, J.G., (1936)“Monism and Dualism in the Theory of International Law”, British Yearbook, 74. (in English).
    • Shaykh al-Islami, Seyed Mohsen. "Investigation of the Fundamentals of Negative Conflict of Laws in Private International Law", Mofid Legal Letter, Vol. 2, No. 2 (2006), pp. 61-78. (in Persian)
    • van Haersolte-van Hof, Jacomijn J., Koppe, Ericke, (2015) “International Arbitration and the lex arbitri”, Arbitration International, Vol. 31, 27. (in English)
    • Virally, Michel, (1968) “The Sources of International Law, in M. Sorensen (ed.), Manual of Public International Law”, London, Macmillan, 171. (in English)
    • Zielinski, Laura Yvonne, (2021) “Property Rights in Treaty Cases: Lessons for Investor-State Arbitration from Case A15(II:A) of the Iran-United States Claims Tribunal, in Maxi Scherer (ed), Journal of International Arbitration, Kluwer Law International, Volume 38, Issue 3, 395-414. (in English)

     

    Judicial and Arbitral Decisions

     

    • Albert Jan Oostergetel v. Slovakia, (UNCITRAL), Final Award, 23 April 2012. (in English)
    • Anglo-Iranian Oil Co. Case (UK v. Iran), Judgment of 22 July 1952, 93. (in English)
    • Amoco International Finance Corp. v. Iran, Iran-US Claim Tribunal, 15 Iran-U.S.C.T.R. 189. (in English)
    • Award No. 604-A15 (II:A)/26 (IV)/B43-FT (Award No. 604), dated 10 March 2020, 39 Iran-U.S.C.T.R. (in English)
    • Barcelona Traction, Light and Power Co, Case (Belgium v. Spain), I.C.J. Reports, 1970, 3. (in English)
    • Brazilian Loans Case (France v. Brazil), PCIJ Reports, 1929, Series A, No. 21. (in English)
    • Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, I.C.J. Reports, 2010. (in English)
    • Case Concerning Elettronica Sicula S.p.A (ELSI) (United States v. Italy), Judgment of 20 July 1989, ICJ Reports 1989, 15. (in English)
    • Case A-18 (Iran v. US), Decision No. DEC 32-A18-FT- 6 April 1984, 5 Iran-U.S.C.T.R., p. 251. (in English)
    • Certain German Interests in Polish Upper Silesia, (1926) P.C.I.J. Series A, No. 7, 19. (in English)
    • Serbian Loans Case, PCIJ Reports (France v. Serbia) 1929, Series A, No. 20 and Series A, No. 21. (in English)
    • CME Czech Republic BV v. Czech Republic (UNCITRAL), Final Award, 14 March 2003. (in English)
    • Enron Corporation v. Argentina (ICSID Case No. ARB/01/3), Decision on the Application for Annulment of the Argentine Republic, 30 July 2010. (in English)
    • Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines, ICSID Case No. ARB/03/25, Award, August 16, 2007. (in English)
    • Inceysa Vallisoletana, S.L. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award, August 2, 2006. (in English)
    • Iurli Bogdanov v. Moldova (SCC), Arbitral Award, 22 September 2005. (in English)
    • La Grand Case (Germany v. United States of America), Judgment of 27 June 2001, I.C.J. Reports, 2001. (in English)
    • Metal Tech Ltd., v. Uzbekistan (ICSID Case No. ARB/10/3), Award, 4 October 2013. (in English)
    • Nottebohm Case (Liechtenstein v. Guatemala), I.C.J. Reports, p. 4. (in English)
    • Norris v. Ireland, E.C.H.R., Series A, No. 142 (1988), Para. 31. (in English)
    • Request for Interpretation of the Judgment of 31 March 2004 in Case Concerning Avena and other Mexican Nationals (Mexico v. US), ICJ Reports, 2009, 3. (in English)
    • Serbian Loans Case, PCIJ Reports (France v. Serbia) 1929, Series A, No. 20 and Series A, No. 21. (in English)
    • Southern Pacific Properties (Middle East) Ltd. v. Egypt (ICSID Case No. ARB/84/3), Decision on Jurisdiction, 14 April 1988. (in English)
Journal of Legal Research
Volume 22, Issue 56
February 2024
Pages 49-84

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