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

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

• renvoi
• domestic law
• public international law
• arbitral and judicial decisions
• domestic law as fact