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Department of Foreign Affairs and the Sources of International Law

dfa_topban_du000668While searching through the Irish Department of Foreign Affairs (DFA) website  it occurred to me that it gave an interesting guide to the Irish Government’s attitude towards international law. While the Constitution does not give much guidance beyond a ‘devotion to the ideal of peace and friendly co-operation’ under Article 29.1, to pacific settlement of disputes under Article 29.2 and the acceptance of ‘the generally recognised principles of international law as its rule of conduct’ with other states under Article 29.3 there is little firm guidance given on any body of international law beyond the EU under Article 29.4  or the International  Criminal Court  under Article 29.9. In contrast to this the DFA website goes into some detail on Ireland and international law. As an example it lists the treaties that Ireland is party to and details on international law in Irish courts’ case law . Though this is  a  paltry list that  includes very few of the international human rights law cases that have gone before the courts, including those cases that have made their way to the European Court of Human Rights such as the  Norris case, this would seem to indicate that the DFA does not consider any human rights cases to be an aspect of  international law. It also has some detail on the sources of international law.

Quoting Article 38.1 of the International Court of Justice Statute, the DFA website goes on to describe treaties and custom ( which it states is relevant in the absence of a treaty, asserting firstly that there is a hierarchy of sources, which is far from a settled argument and  secondly that custom cannot be complementary or some instances surpass treaties as a source of law as is the instance with the Vienna Convention on the Law of Treaties which is utilised by the DFA as an example of a classic treaty. It has far surpassed its original text )in some detail. This suggests that the DFA does not have much regard for Articles 38.1. (c) or (d) of the ICJ Statute that deals with general principles of international law, judical decisions and writings of academics.  It also gives its own interpretation on what the ICJ specifically may do with the decisions of national courts:

Apart from decisions of international judicial bodies, decisions of a national court may amount to a statement of what that court considers to be international law on a particular matter. Such a decision would only carry weight as evidence of international law where the court is of very high standing and where the international law issue is central to the case and receives careful consideration. So, for example, important decisions of the United States Supreme Court (such as 1900 case, The Paquete Habana), the House of Lords (such as the Pinochet Case) and the Irish Supreme Court (such as The Government of Canada v The Employment Appeals Tribunal) have influenced the development or interpretation of international law.  

Where exactly the DFA have found this interpretation of ICJ practice is unclear. It is a very limited understanding of how the ICJ can and does use domestic case-law in its reasoning. The DFA also appears to ignore many of the other judical bodies such as the WTOs Dispute Settlement Body, or the European Court of Human Rights or any of the other myriad of bodies which interpret international law on a regular basis actually operate.  The nature of the guidance on this website is very limited, in fact it could be disregarded as misleading as an accurate guide to the sources of international law. It is my intention to have a good rummage among the webpages of the DFA for similar assertions about international law, I will report back with any other findings of misdescription.

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  1. pmcauliffe
    November 10, 2009 at 7:57 pm

    In fairness (disclaimer: I worked for the DFA not so long ago) it does not purport to be anything more than a basic guideline. There is nothing controversial about saying custom is relevant in the absence of a treaty (indeed, it seems inarguable that it has its greatest relevance where there is no treaty). On a plain reading of the above, I see no implication, assertion or hint that there is a hierarchy of sources or that custom cannot be complementary or some instances surpass treaties as a source of law. Indeed, the order of Article 38 of the ICJ statute does far more to suggest a hierarchy than the relatively minimalist language of the webpage, which in fact seems to go out of its way to avoid simplifying int law’s sources for the lay reader by suggesting there is one (as some lecturer or textbooks actually do)

  2. Aoife O'Donoghue
    November 11, 2009 at 9:57 am

    Hey,

    Thanks for the comments.
    I would intrepet the absence of treaty as implicitly arguing a hierarchy in a manner that the ICJ Statute does not (if it simply as they are listed, the DFA follows this)Custom is as relevant in the presence or absence of treaty (nuclear option here being erga omnes or jus cogens)
    As to the simplification, I would agree that both the DFA and some textbooks underestimate their audience. Simplification does not have to be misleading and I would argue this is. Its interpretation from the list of relevant cases through to its omission of sources does not reflect even the most conservative views of international law today.

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