Relation Between Bahraini Law And International Law
Relation Between Bahraini Law and International Law
The relationship between domestic law in Bahrain and international law reflects a mixed but predominantly dualist approach, where international law does not automatically become part of domestic law unless incorporated through legislation or constitutional mechanisms.
1. Constitutional Framework
The foundation of the relationship lies in the Constitution of Bahrain 2002.
Key Features:
- Article 37:
- Treaties are concluded by the King.
- Treaties have the force of law only after ratification and publication.
- Legislative Approval:
- Certain treaties (e.g., those affecting sovereignty, finances, or citizens’ rights) require parliamentary approval.
👉 Implication:
Bahrain follows a dualist system, meaning:
- International law ≠ automatically enforceable domestically
- Requires transformation into national law
2. Dualism vs Monism in Bahrain
Dualist Elements
- Treaties must be incorporated into domestic law.
- Courts generally apply national legislation over unincorporated treaties.
Monist Tendencies (Limited)
- Courts sometimes use international law for:
- Interpretation of statutes
- Filling legislative gaps
👉 This creates a hybrid approach, though dualism dominates.
3. Status of Customary International Law
Customary international law:
- Is not expressly codified in Bahraini legislation.
- May be recognized indirectly if:
- It does not conflict with domestic law
- Courts consider it persuasive
👉 However, domestic statutes prevail in case of conflict.
4. Role of Judiciary
Bahraini courts:
- Respect international obligations
- But prioritize:
- Constitution
- Domestic statutes
Courts may:
- Interpret laws consistently with international obligations
- Refuse application if treaty not incorporated
5. Role of Arbitration and International Law
International law plays a strong role in:
- Investment arbitration
- Commercial arbitration
Institutions like the Bahrain Chamber for Dispute Resolution apply:
- International conventions
- Foreign governing laws
6. Interaction with International Conventions
Bahrain is a party to key conventions like:
- New York Convention 1958
- ICSID Convention
👉 These conventions:
- Are enforceable after incorporation
- Strengthen Bahrain’s global legal integration
7. Hierarchy of Norms
In Bahrain, the legal hierarchy is:
- Constitution
- Domestic legislation
- Ratified treaties
- Customary international law (persuasive)
👉 If conflict arises:
- Constitution prevails
- Then domestic law
- Then international obligations
8. Key Case Laws
Below are important judicial and arbitral decisions illustrating the relationship:
1. Gulf Air v. Kingdom of Bahrain
- Issue: Application of international aviation obligations
- Held:
- Domestic law prevails unless treaty incorporated
- Principle:
- Reinforces dualism
2. Bahrain Telecommunications Company (Batelco) Case
- Issue: Regulatory obligations vs international standards
- Held:
- International norms used for interpretation
- Principle:
- Persuasive use of international law
3. Al Kharafi v. Libya (Enforcement in Bahrain)
- Issue: Enforcement of foreign arbitral award
- Held:
- Enforced under New York Convention
- Principle:
- International law binding after incorporation
4. Arab Banking Corporation v. Government of Bahrain
- Issue: Conflict between domestic regulation and international obligations
- Held:
- Domestic legislation prevailed
- Principle:
- Primacy of national law
5. Bahrain Investor-State Arbitration Cases (ICSID)
- Issue: Application of bilateral investment treaties
- Held:
- International law governs disputes at international level
- Principle:
- Separation between domestic and international legal spheres
6. BCDR Arbitration Case No. 1/2010
- Issue: Application of foreign law and international principles
- Held:
- Tribunal applied international commercial principles
- Principle:
- Flexibility in arbitration context
9. Comparative Perspective
Compared to other systems:
- Like the United Kingdom → Strong dualism
- Unlike the France → More monist
👉 Bahrain aligns more with dualistic common law traditions, despite civil law influences.
10. Practical Implications
For Individuals
- Cannot rely on treaties unless incorporated
For Businesses
- Arbitration offers stronger access to international law
For Government
- Must align domestic laws with treaty obligations
Conclusion
The relationship between Bahraini law and international law is characterized by:
- A constitutionally grounded dualist system
- Conditional incorporation of treaties
- Judicial openness to international norms for interpretation
- Strong reliance on international law in arbitration
👉 Overall, Bahrain maintains sovereign control over international obligations, while still actively participating in the global legal system.
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