Lecture 5 - the relationship between national & international law Flashcards
General rule on the relationship between national & international law:
Art. 27 of the 1969 ___________:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”
Art. 46:
“1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”
General rule on the relationship between national & international law:
Art. 27 of the 1969 Vienna Convention:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”
Art. 46:
“1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”
Two Main Approaches to Explain the Relationship between national and international law:
1- _____ Approach
2- ______Approach
Under the Monist Approach rules of international law are part of national law unless excluded (presumption of ______)
Under the Dualist Approach they are part of national law only if included deliberately (presumption of _______).
Two Main Approaches to Explain the Relationship between national and international law:
1- Dualist Approach
2- Monist Approach
Under the Monist Approach rules of international law are part of national law unless excluded (presumption of inclusion)
Under the Dualist Approach they are part of national law only if included deliberately (presumption of exclusion).
Monist Approach:
International and Internal law are parts of the one single legal order. If there is a conflict between international and internal law, ________ law is superior and has priority over the domestic law.
Monist Approach:
International and Internal law are parts of the one single legal order. If there is a conflict between international and internal law, international law is superior and has priority over the domestic law.
Monist Approach, Possible consequences:
1- implementation of one in the other - automatic
2- “Doctrine of ________”:
- “a rule of int law becomes part of national law without a need of clear acceptance by domestic authorities”
- Such rule is automatically incorporated - automatic adoption - unless there is a provision of national law which precludes the use of such rule by the national court (presumption).
Monist Approach, Possible consequences:
1- implementation of one in the other - automatic
2- “Doctrine of Incorporation”:
- “a rule of int law becomes part of national law without a need of clear acceptance by domestic authorities”
- Such rule is automatically incorporated - automatic adoption - unless there is a provision of national law which precludes the use of such rule by the national court (presumption).
Monist Approach - Netherlands.
According to Dutch Constitution, all internal law, even constitutional law must be disregarded if it is incompatible with the provisions of treaties or decisions of international organizations that are binding on all persons
Dutch courts must overrule acts of Parliament on the ground that they may conflict with certain treaties or resolutions of int organizations.
But - Dutch Parliament must consent to treaties which conflict with the ______ by a majority necessary for _______ amendment
Monist Approach - Netherlands.
According to Dutch Constitution, all internal law, even constitutional law must be disregarded if it is incompatible with the provisions of treaties or decisions of international organizations that are binding on all persons
Dutch courts must overrule acts of Parliament on the ground that they may conflict with certain treaties or resolutions of int organizations.
But - Dutch Parliament must consent to treaties which conflict with the Constitution by a majority necessary for constitutional amendment
A Dualist Approach.
Two main thesis:
1- international law and municipal law exist separately and one does not affect the other
2- They are different and independent from each other
There are two main reasons for this:
A- b/c inter-state and intra-state relations are fundamentally different.
Relations between state-citizens - subordination - citizens are dependent.
Relations between states are based on equality in principle.
B- b/c Norm-creating sources of the two are different.
Rules of international law - result of “common consent” - concurring will.
Rules of municipal law - result of unilateral consent.
A Dualist Approach.
Two main thesis:
1- international law and municipal law exist separately and one does not affect the other
2- They are different and independent from each other
There are two main reasons for this:
A- b/c inter-state and intra-state relations are fundamentally different.
Relations between state-citizens - subordination - citizens are dependent.
Relations between states are based on equality in principle.
B- b/c Norm-creating sources of the two are different.
Rules of international law - result of “common consent” - concurring will.
Rules of municipal law - result of unilateral consent.
H. Lauterpacht, in Oppenheim’s International Law states:
Differences between international law and national law:
1) Their sources;
2) The relations they regulate; and
3) Their substance (argues that ______ law is a weaker form of law as it is between sovereign States rather than the law of a sovereign over its subjects).
H. Lauterpacht, in Oppenheim’s International Law states:
Differences between international law and national law:
1) Their sources;
2) The relations they regulate; and
3) Their substance (argues that international law is a weaker form of law as it is between sovereign States rather than the law of a sovereign over its subjects).
Dualist Approach:
If a municipal system accepts Dualist Approach - There are three consequences:
1- A rule from one - cannot have effect within the other - “No direct ________”.
2- No possibility of conflict of rules.
3- If one of these legal orders wants to utilize a rule from the other - change the “shape/formalistic structure” of the rule - This is called “transformation”.
Dualist Approach:
If a municipal system accepts Dualist Approach - There are three consequences:
1- A rule from one - cannot have effect within the other - “No direct implementation”.
2- No possibility of conflict of rules.
3- If one of these legal orders wants to utilize a rule from the other - change the “shape/formalistic structure” of the rule - This is called “transformation”.
Methods of Implementing ______:
Adoption - adoption or ‘automatic incorporation’ of international law as part of domestic law, renders a treaty automatically applicable in domestic law as provided by the Constitution.
Some Constitutions however require legislative implementation for certain treaties to be applicable e.g. France, Spain, Belgium Netherlands, United States of America.
Others like Germany and Italy, require in addition an ‘order of execution’ before ratification.
Methods of Implementing Treaties:
Adoption - adoption or ‘automatic incorporation’ of international law as part of domestic law, renders a treaty automatically applicable in domestic law as provided by the Constitution.
Some Constitutions however require legislative implementation for certain treaties to be applicable e.g. France, Spain, Belgium Netherlands, United States of America.
Others like Germany and Italy, require in addition an ‘order of execution’ before ratification.
Methods of Implementing Treaties:
____________ - involves enacting implementing legislation and appending to the text of the Act or its accompanying schedule, the relevant treaty.
Once incorporated, international treaties are accorded a higher status than domestic law, superseded only by the Constitution.
The only difference between an incorporated treaty and an adopted treaty, is the form it takes in domestic law, the substance being the same.
Methods of Implementing Treaties:
INCORPORATION - involves enacting implementing legislation and appending to the text of the Act or its accompanying schedule, the relevant treaty.
Once incorporated, international treaties are accorded a higher status than domestic law, superseded only by the Constitution.
The only difference between an incorporated treaty and an adopted treaty, is the form it takes in domestic law, the substance being the same.
The concept of Self-Executing Treaties was created by the former United States Chief Justice Marshall in Foster v Neilson 27 U.S. (2 Pet.) 253, 314 (1829) were he stated,
“A treaty is in its nature a ______ between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective powers to the instrument.”
The concept of Self-Executing Treaties was created by the former United States Chief Justice Marshall in Foster v Neilson 27 U.S. (2 Pet.) 253, 314 (1829) were he stated,
“A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective powers to the instrument.”
Three categories of self executing treaties have been identified in the United States:
1) those addressed to ______ authorities not individuals and capable of being implemented without legislative action,
2) those relevant to the relationship between public authorities and private individuals i.e. having ‘_____ effect’ and,
3) those relevant to relations between individuals.
Three categories of self executing treaties have been identified in the United States:
1) those addressed to administrative authorities not individuals and capable of being implemented without legislative action,
2) those relevant to the relationship between public authorities and private individuals i.e. having ‘vertical effect’ and,
3) those relevant to relations between individuals.
Self-executing treaties are those treaties which are sufficiently clear and precise to confer rights or obligations on individuals in domestic law without needing implementing legislation. Two conditions have to be satisfied:
A ________ criterion: the rights and obligations created by the treaty must be enforceable by individuals directly before national courts. The persons entitled to the right or subject to the obligation must be specifically targeted by the international treaty.
A ________ criterion: the rule must be sufficiently precise and clear not to require national implementing measures. There should be minimal scope for different interpretations of the implementation of the international rule.
Self-executing treaties are those treaties which are sufficiently clear and precise to confer rights or obligations on individuals in domestic law without needing implementing legislation. Two conditions have to be satisfied:
A personal criterion: the rights and obligations created by the treaty must be enforceable by individuals directly before national courts. The persons entitled to the right or subject to the obligation must be specifically targeted by the international treaty.
A material criterion: the rule must be sufficiently precise and clear not to require national implementing measures. There should be minimal scope for different interpretations of the implementation of the international rule.
