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International Law in New National Constitutions

Published online by Cambridge University Press:  28 March 2017

Robert R. Wilson
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Type
Editorial Comment
Information
American Journal of International Law , Volume 58 , Issue 2 , April 1964 , pp. 432 - 436
Copyright
Copyright © American Society of International Law 1964

References

1 David R. Deener, ‘ ‘ International Law Provisions in Post-World War II Constitutions , “ 36 Cornell Law Eeview 505-533 (1951). See also, for a comparative study of practice, L. Erades and Wesley L. Gould, The Relation between International Law and Municipal Law in the Netherlands and in the United States (1961) ; and for discussion of the “transformation” as compared with the “adoption” method, Ignaz Seidl- Hohenveldern, “Transformation or Adoption of International Law into Municipal Law,” 12 International and Comparative Law Quarterly 88-124 (1963).

2 In a Commonwealth state such as New Zealand, which does not have a written constitution, there may be application of international law by judges on the same basis as British judges might apply it. See the statement in In re Heyting, N.Z.L.E. [1928] 233, to the effect that the New Zealand Court occupied a position in New Zealand similar to that of the High Court of Justice in England and was largely guided by the principles and conventions of that Court; the same view is expressed by J. McGregor in the case of In re Scholer, N.Z.L.B. [1955] 1190.

3 Possible illustrations are to be found in provisions for the transition of Jamaica and of Trinidad and Tobago to the status of independent states and to full membership in the Commonwealth. By the fourth section of the Jamaica (Constitution) Order in Council, 1962, “ A l l laws which are in force in Jamaica immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force… . “ There is a comparable provision in Sec. 4 of the Trinidad and Tobago (Constitution) Order in Council, 1962. The body of law in each case would presumably include the common law applicable before independence. Some new states in Africa have in their constitutions provisions looking to federation with other states. Some of these mention possible relinquishment of sovereignty. In the case of Ghana the wording envisages only an African federation. Preambular language in the Constitution of Guinea indicates support for any policy designed to establish a “United States of Africa,” and wording in Art. 34 envisages unity with ” a n y African s t a t e . “ Other constitutions, such as those of Congo (Brazzaville) and Dahomey refer to free co-operation with other states. In still other constitutions (for example, those of Mauritania (Sec. 44), Mali (Sec. 38) and Gabon (Sec. 52), respectively) there are clauses which have as their object to permit cessions or changes of sovereignty only with the consent of the people concerned or by referendum. On the point that the type of clause here noted is not peculiar to African entities, there being similar provisions in constitutions of Arab states, see Egon Schwelb, “The Republican Constitution of Ghana,” 9 American Journal of Comparative Law 634-656 (1960).

4 Guinea, Constitution of 1958 (Art. 31); Mali, Constitution of 1960 (Art. 38).

5 Togo, Constitution of 1961, Art. 56.

6 Malaya's Constitution of 1957, Art. 76 (1) ( a ) ; Pakistan Constitution of 1962, Art. 132(b) and Third Schedule. Malaysia's Parliament has constitutional power to enforce ’ ‘ any decision taken by an international organization and accepted before Merdeka Day by the Government of the United Kingdom on behalf of the Federation or any part thereof.''

7 Cmd. 1093 (July, 1960), Appendix A. Another passage, which refers, not directly to international law, but to a standard frequently employed in treaties, is that part of the Cyprus Constitution which binds the Eepublic to accord “ b y agreement on appropriate terms'’ most-favored-nation treatment to Greece, Turkey and the United Kingdom, respectively, for “ a l l agreements, whatever their nature … “ ; specifically excepted from the rule are the Treaty for the Establishment of the Eepublic of Cyprus and the treaty with the United Kingdom concerning bases and military facilities. Cmd. 505, pp. 97-103. The provisions concerning most-favored-nation treatment are understandable in light of the history of the period of several years just before the Cypriots gained independence.

8 Art. 7, par. 2 (emphasis added).

9 Wilson, Robert E. and Clute, Robert E., “Commonwealth Citizenship and Common Status , “ 57 A.J.I.L. 566–587 (1963).Google Scholar The reference to the Nigerian Constitution is to that of 1960, which has now been replaced by a new Constitution.

10 Constitutions of Gabon (Art. 54); Central African Republic (Art. 39); Chad (Art. 65); Dahomey (Art. 56); Republic of Cameroun (Art. 40); Malagasy (Art. 18); Mauritania (Art. 46); Niger (Art. 56); Senegal (Art. 58); Togo (Art. 57); Tunisia (Art. 58). The last-mentioned country does not have in its provision a requirement of reciprocity. Cyprus, in Art. 169(3) of its Constitution, specifies reciprocity as a condition on which treaties will have force superior to that of any municipal law.

11 The 1946 Constitution of France provided that treaties should have force superior to that of statute law, but did not include provisions concerning reciprocity. The more recent constitution apparently makes a distinction between “ treaties “ and “international agreements“; while the President negotiates the former, in the case of the latter he is merely informed. On the point that under the 1946 Constitution the President was only informed of the conclusion of international agreements, see A. deLaubadére, ” L a Constitution Franchise de 1958,” 20 Zeitschrift för Ausl?ndisches Offentliches Recht und Völkerrecht 506-561, at 549-551 (1960). On the 1958 Constitution generally, see Dorothy Pickles, The Fifth French epublic (I960).

12 Nruen Quoc Dinh, “ L a constitution. fran$aise de 1958,” 75 Eevue de Droit International Public et de Science Politique 515-564, at 549-551 and 561 (1959). The writer raises the question of whether the state could denounce the treaty; if not, he submits that the treaty would remain binding in the international sense.

13 Charlton v.Kelly, 229 U.S. 447 (1913).

14 Cf.Hamza Eroğlu, “ L a constitution turque et les relations internationales,” 1961 Turkish Tear Book of International Rolations 62-90, at 85.

15 With this may be compared Art. 15 of the Mexican Constitution of 1917, by which “No treaty shall be authorized for the extradition of political offenders… . “ 2 Peaslee, Constitutions of Nations 418 (1950).

16 Art. 132 and Third Schedule, par. ( f ) . The paragraph immediately following lists foreign and extraterritorial jurisdiction, admiralty jurisdiction, and offenses committed on the high seas and in the air.

17 United States v. Arjona, 120 U. S. 479 (1887).