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International Law 3
Relationship between International Law
and
Domestic Law
Theories of Relationship
• Monism/ unity of the legal system
• Dualism/separation of legal system
• Moderate or middle path
Concept of Monism
• The monists view that
- there is no difference between national and international
law. They think that...
Continued…
- the purpose of both legal systems is identical.
- the rights and obligations of one legal system can be trans...
Concept of Dualism
• Dualists argue that
a. international and national law are completely two separate
and distinct legal ...
Continued…
• International law regulates the relations between states
where as national law regulates the rights and oblig...
Moderate or middle ground (a third group)
• This is the theory of coordination, not confrontation like
monism and dualism....
Continued…
• The transfer of rights and obligations can be possible through a
process of incorporation, harmonization and ...
Continued…
• It argues that both systems benefit from each other.
• It is true that international will not interfere in in...
Conclusion
• National and international legal system operate in their own
domain without any presumption of conflict or ho...
Continued…
• International law is not concerned at all about domestic law
unless a domestic law or domestic Act infringes ...
Relation between national and international law:
Australian perspective
• International customary law is not automatically...
Continued…
• International treaty obligations voluntarily assumed by
Australia do not necessarily have legal effect within...
Continued…
• Relevance of international treaties in interpreting
domestic statutes:
In Polities v Commonwealth it is recog...
Influence of international law on domestic law in
Australia
• Influence of human rights treaties: In Mabo Case Brennan J s...
The subject of, and personality in , International Law
• The concept of subject of international law is not same as
intern...
Continued…
• Broadly speaking, according to Martin Dixon, the main capacities of
an international legal person include the...
What is international legal personality ?
• Attributes of international legal personality include
- capacity or ability to...
Subjects of international law
• States
• Non-state entities: international organizations,
individuals, colonial, trust and...
State as a subject of international law
• Historically since the emergence of legal positivism in the 16th and 17th centur...
Non-state entities: International organizations as a
subject and legal person
• International organizations are recognized...
Individuals as a subject of international law
• Individuals are subjects of international law from time immemorial
and sti...
Continued…
• Legal personality established under international criminal law :
a. Article 6 of the Nuremberg Charter: princ...
Continued…
e. The Rome Statute of ICC 1998: Articles 6, 7 and 8
establish individual criminal responsibility for the
commi...
Continued…
g. Art. 6 of ILC Draft Code on Offences against the Peace and
Security of Mankind 1987: Individual responsibili...
Continued…
• All international human rights treaties have
given individuals a long list of substantive
rights, such as ICC...
The status of exiled government in
international law
• General conditions for acquiring international legal
personality by...
Continued…
• The exiled governments may enjoy some form of international legal personality, that
means, partial legal pers...
Continued…
2.Through active participation in international
relations.
3. Ability to conduct external activities governed b...
Organs of national liberation war
• Organs of national liberation war may enjoy
international legal personality, although ...
Continued…
b. The war of liberation is intended for establishing the people’s
right to self-determination which recognised...
Continued…
c. Engagement in diplomatic activities and the
acceptance by UN of their participation in international
affairs...
Multinational Corporations
• Multinational corporations do not have any status in international law.
• The arguments are:
...
Continued…
c. MNCs are regulated by the market forces and there is no
need for artificial control. Artificial regulation m...
Continued…
• Initiatives for the regulation of MNCs under international law
for MNCs
1. Development of self-regulatory/non...
Continued…
• Institutional initiative for regulation of MNCs
and international plane
a. UN Commission on Transnational Cor...
Continued…
• Regional bodies such as European Union, European Council
and Organisation of American States
• Way forward
a....
The status of terrorist organizations
• The terrorists organizations do not enjoy any international
legal personality for ...
Continued…
• Responsibility under international law
State sponsored vs. private terrorism
Article 8: Responsibility of Sta...
Conclusion
• The concept of personality is divisible, it can be lost
and acquired.
• Personality can be partial or full.
•...
International legal personality
• Determine the status of terrorist organisations in
international law in terms of their l...
About Class Test on 29th March
• 1. Class test 20% on 7-8 March (mandatory for all)
• 2. Starts sharply at the start of yo...
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International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law.

Courtesy: Bangladesh Law Digest
Website: www.bdlawdigest.org
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International law -Relationship between International Law and Municipal Law

  1. 1. International Law 3 Relationship between International Law and Domestic Law
  2. 2. Theories of Relationship • Monism/ unity of the legal system • Dualism/separation of legal system • Moderate or middle path
  3. 3. Concept of Monism • The monists view that - there is no difference between national and international law. They think that the science of law or the body of law is the law itself. The national law and the international law are the just two branches of a single body of science of law. They are the constituent elements of a single body of law. • They argue that -the rules of both international and national law operate in the same sphere of influence and concerned with the same subject matter, that is, individuals. What ever legal systems we deal with, be it national, regional or international, all are meant to be dealing with individuals. In the words of Lauterpacht, state does not exist as a legal entity on its own. It is the individual human beings that are the fundamental element of all societies.
  4. 4. Continued… - the purpose of both legal systems is identical. - the rights and obligations of one legal system can be transferable to other system. For example, human rights are available in domestic legal system as well as in international legal system. -national and international law are complementary or supportive to each other in the sense that rights and obligations under both systems are there to serve the interests of people. • Kelsen, the monist positivist argues that international law derives from the practice of states and national law derives from state as established in international law. • The monist naturalists argue both systems are subject to higher legal order, the law of nature.
  5. 5. Concept of Dualism • Dualists argue that a. international and national law are completely two separate and distinct legal systems. b. they operate into separate water-tight compartment. c. they do not operate in the same sphere of influence. • International law and national law differ as to their sources, the relation they regulate and their legal content and application. • National legal systems are not common, they are diverse and thus they can not interact with international law because of significant diversity and the international laws are common in nature.
  6. 6. Continued… • International law regulates the relations between states where as national law regulates the rights and obligations of individuals within the states. • There is no room for the transforming rights and obligations from one system to another. Because, the individuals are the citizens of a country and subject to the national law. In addition, the sources and the subject of both systems are different. There are many points where they come into conflict. • National law operates vertically where sovereign power of the state is the law-maker and all others are law-abider while international law operates horizontally where states are both creator and abider of the
  7. 7. Moderate or middle ground (a third group) • This is the theory of coordination, not confrontation like monism and dualism. • This theory supposes that both monism and dualism are the extreme expression of articulating the relationship between national and international law which is flawed more or less, because they do not cooperate and conflict perse. • It argues against dualism that international and national law interact and intersect. The conflict lies with the obligation created by them, not with system itself. • It argues against monism that the transfer of rights and obligations as monists claim is not automatic ( (see the decision of Federal Court in Minister for Immigration and Ethnic Affairs v Teoh 1995: the place of unincorporated treaty in Australian law was not considered).
  8. 8. Continued… • The transfer of rights and obligations can be possible through a process of incorporation, harmonization and adoption. In another words, there must be a mechanism through which rights and obligations can be transferred from one system to another. For examples, adoption of treaty provisions into national law, European Union’s plan to harmonize the 27 conflicting domestic laws • The dualist view is not quite true that obligations of international and domestic law are not transferable. For example, as per Art.38(1) (c) domestic law is a fertile source of international law at the formative stage. Another example is, there are too many areas of domestic law which are influenced by international law such as human rights, environmental law, trade law, and law of international rivers or multi-territorial rivers.
  9. 9. Continued… • It argues that both systems benefit from each other. • It is true that international will not interfere in internal matter of a state . But this principle of non-interference on the part of international law is not absolute. • It also argues that it is erroneous for both groups to argue that two legal system conflict or unify among each other. It is the obligations that emanate from the systems can come into conflict. It is evident in many cross- boarder issues such as terrorism, human rights, environment, global worming. In all these issues the interests of state and the interests of people are different. For example Chine’s human rights law can come into conflict with various human rights obligations developed in UN human rights instruments.
  10. 10. Conclusion • National and international legal system operate in their own domain without any presumption of conflict or hostility to each other. • Both systems are important and mutually supportive and interacting with each other in contemporary context in relation to many trans-boundary issues. For example, state has the primary responsibility for the implementation of HR, the secondary responsibility lies with international authority formed under international law.
  11. 11. Continued… • International law is not concerned at all about domestic law unless a domestic law or domestic Act infringes or violates the assumed or assigned international obligation ( for that state) emanating from international law. Examples can be taken from forms of government or South African apartheid policy under Article 4 ( discriminates indigenous black voters) of the Electoral Act as well as in the constitution of South Africa violated an obligation as they assumed by ratifying 1965 UN Convention on the Elimination of Racial Discrimination. Here the obligation of domestic law comes into conflict with international obligation.
  12. 12. Relation between national and international law: Australian perspective • International customary law is not automatically a part of Australian law. In Chow Hung Ching v R Lathman CJ argued ‘international law is not as such part of the law of Australia…but a universally recognised principle of international law would be applied by our courts’. • The ruling in Mabo v Queensland ( No2) recognises the normative relevance of customary international law to the Australian common law and their relationship more exact with greater authoritative weight, but does not endorse the automatic incorporation theory. International law is thought to be an influence on , rather than part of common law.
  13. 13. Continued… • International treaty obligations voluntarily assumed by Australia do not necessarily have legal effect within Australia. To create treaty obligation within Australia, incorporation of treaty into national law through the enactment of implementing legislation is essential. • Obligations under unincorporated treaties are not binding in Australia. In Minister for Immigration and Ethnic Affairs v Teoh case, the High Court held that treaty is not a part of Australian law until enacted as legislation, however the ratification of convention has significance, it is not a mere ineffectual act.
  14. 14. Continued… • Relevance of international treaties in interpreting domestic statutes: In Polities v Commonwealth it is recognised that a statute is to be interpreted and applied , as per as its language permits, so that it is in conformity, not in conflict with the established rules of international law.
  15. 15. Influence of international law on domestic law in Australia • Influence of human rights treaties: In Mabo Case Brennan J said: The opening up of international remedies to individuals…brings to bear on the common the powerful influence of the Covenant and the international standards it purports. • Infusion of international law and jurisprudence into Australian common law in the field of human right has been established through judicial activism. ( see Theophanous v Herald & Times Ltd, Levy v Victoria, language v Australian Broadcasting Commission, Kruger v Commonwealth ( stolen generation case). • Influence of trade and investment treaties
  16. 16. The subject of, and personality in , International Law • The concept of subject of international law is not same as international legal personality. • The subject of any legal system is all about rights and obligations. If certain rights are conferred on an entity under a legal system and that entity is required to perform certain duties under that legal system, the entity is the subject of that legal system. • When international law creates some rights for an entity and imposes some obligations, that entity becomes the subject of international law.
  17. 17. Continued… • Broadly speaking, according to Martin Dixon, the main capacities of an international legal person include the ability - to make claims before international ( and national) tribunals in order to vindicate rights given by international law; - to be subject to some or all of the obligations imposed by international law; and - to have the power to make valid international agreements binding in international law. • legal personality in international law does not mean only the holders of rights and obligations under international law, but also include the capacity/ability to be the bearer of international legal rights and obligations.
  18. 18. What is international legal personality ? • Attributes of international legal personality include - capacity or ability to exercise rights conferred upon by international law; - capacity to be the bearer of rights and duties conferred upon by international law - capacity to perform obligations imposed upon by international law; and - capacity to sue and be sued under international law
  19. 19. Subjects of international law • States • Non-state entities: international organizations, individuals, colonial, trust and non-self governing territories • Controversial subjects: emerging State and revolutionary regimes
  20. 20. State as a subject of international law • Historically since the emergence of legal positivism in the 16th and 17th centuries states were the sole subject and sole legal person of international law until 2nd WW. But after that States are no longer the sole subject of international law. • States are nevertheless the most important and dominant subject of international law in the contemporary international law as international law was originally conceived as a system of rules governing the relations of states among themselves. They have all of the capacities required for subject-hood and international legal personality and it is with their rights and duties that the larger part of international law is concerned. • ICJ says ‘ States are the objective and the principal subject of international law. • The capacities of other international persons are dependent, at least, initially upon the agreement of states. • To be a subject and a person of international law the State must have qualifications as set out in Montevideo Convention on the Rights and Duties of States.
  21. 21. Non-state entities: International organizations as a subject and legal person • International organizations are recognized as subjects of international law as well as international legal persons such as UN, World Bank, IMF, WTO. These organizations have ample influence on international law-making process more than many sovereign states. • The international legal personality of UN has been recognized by ICJ in the Reparations case in its Advisory Opinion sought by the UN on its capacity to bring an international claim against Israel for reparations for the death Count Bernadotte. The ICJ held… the organization is an international person….it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims…. • The international voluntary Non-Governmental Organizations ( NGOs) such as Amnesty International (for the protection and promotion of HR ) and Green Peace ( for environment) are also recognized as having the status of international legal personality which they have acquired through their capacity and ability to perform in international plane. • Organs of national liberation movement enjoys some form of international legal personality specially following the UN Declaration on the Granting of Independence of Colonial Countries in 1960.
  22. 22. Individuals as a subject of international law • Individuals are subjects of international law from time immemorial and still they are. Only the positivism attempted to curtail their status with an argument that they are the object, not the subject of international law. • The movement for the protection and promotion of human rights after 2nd WW has elevated the individuals to the status of subject of international as well as international legal person. • They can enjoy the whole range of recognized rights under international legal system as well as procedural locus standi before various international legal judicial and quasi-judicial forums.
  23. 23. Continued… • Legal personality established under international criminal law : a. Article 6 of the Nuremberg Charter: principles relating to international criminal responsibility of individuals against peace, war crimes and crimes against humanity b. Decision of Nuremberg Tribunal: ‘International law imposes duties and liabilities upon individuals as well as states’. c. Decision of Tokyo War Crimes Tribunal holding individuals for war crimes d. Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948: ‘ persons committing genocide …shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’.
  24. 24. Continued… e. The Rome Statute of ICC 1998: Articles 6, 7 and 8 establish individual criminal responsibility for the commission of any of listed crimes such as genocide, war crimes, crimes against humanity etc. irrespective of the laws of his own country. f. Mandate given to ICTY and ICTR to prosecute and punish individuals for the commission of atrocities, ethnic cleansing, innocent civilian killings, war crimes and crimes against humanity during Yugoslovia and Rwandan genocide.
  25. 25. Continued… g. Art. 6 of ILC Draft Code on Offences against the Peace and Security of Mankind 1987: Individual responsibility for committing , leading, planning, organising and ordering crimes against peace and security h. Criminal responsibility under other international documents such as art. 105 of UNCLOS regards piracy as a crime of international significance, providing remedies enforceable in international law. .
  26. 26. Continued… • All international human rights treaties have given individuals a long list of substantive rights, such as ICCPR and ICESCR, Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of Child 1989, UN Declaration on the Rights of Indigenous Peoples 2007, regional conventions including European Convention on Human Rights 1950, Inter- American Convention of Human Rights 1969, African Charter of Human and People’s Rights 1979.
  27. 27. The status of exiled government in international law • General conditions for acquiring international legal personality by a state government : • Effective territorial control • Effective internal stability/political authority • Power to enter into international relations
  28. 28. Continued… • The exiled governments may enjoy some form of international legal personality, that means, partial legal personality provided following conditions are met: 1. Ability to prove an effective political control through • involvement in armed conflict, establishing armed forces, • Controlling merchant ships carrying its flag, • rallying a large number of nationals to the cause of liberation of their country, • maintaining authority over certain parts of its territory and population, and displaying partial effectiveness by undermining the effective territorial control of its enemy. • Evidence of representative character expressed through public support in democratic election
  29. 29. Continued… 2.Through active participation in international relations. 3. Ability to conduct external activities governed by international law. For example, during the war of liberation, the exiled government of Bangladesh opened diplomatic missions in London, New Delhi, Washington, Sweden and Hong Kong.
  30. 30. Organs of national liberation war • Organs of national liberation war may enjoy international legal personality, although they have some functional limitations. • The reasons/justification or legal foundation for such status: a. recognition of war of liberation as international armed conflict by the1977 Additional protocol 1 to Four Geneva Conventions of 1948 and thus regulating the activities of national liberation groups and freedom fighters under international law
  31. 31. Continued… b. The war of liberation is intended for establishing the people’s right to self-determination which recognised as fundamental right and protected by international law (see art.1(1) of ICCPR, 1966, art.1(1) of ICESCR,1966). Moreover, attainment of this right is one of the cardinal objectives of UN charter. ( see art.1(2). The denial of this right constitutes a breach of specific and obligatory provisions of the UN Charter, its various other authoritative prescriptions, and rules of international law.
  32. 32. Continued… c. Engagement in diplomatic activities and the acceptance by UN of their participation in international affairs. UNGA Resolution 3247 in 1974 authorises, national liberation groups to participate in the sessions of the General Assembly, conferences, and meetings of specialised agencies. Example: active participation of PLO in different UNGA meetings in the status of observer.
  33. 33. Multinational Corporations • Multinational corporations do not have any status in international law. • The arguments are: a. they are profit-making entities, they are not meant for participation in maintaining international relations for peace and security and therefore they should not be the subject of international law. They are better to be left with self- regulation. b. they are treated as citizens of the country of incorporation and subject to the laws of that country. ICJ in Bercelona Traction case in 1970 gave MNCs the same status as citizens , defined by their ties to a particular state of incorporation whose law and jurisdiction are applicable.
  34. 34. Continued… c. MNCs are regulated by the market forces and there is no need for artificial control. Artificial regulation may result in distortion and instability. • MNCs are treated as the objects of international legal obligation as they a. play a major role on the international plane; b. generate pressures on national authorities and international bodies; and c. influence the international decision-making process.
  35. 35. Continued… • Initiatives for the regulation of MNCs under international law for MNCs 1. Development of self-regulatory/non-binding instruments a. OECD Guidelines on Multinational Enterprises 1976 b. UN Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights,2003 c. ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy,1977 ( Primary Responsibility for state and secondary responsibility for MNCs) d. The New International Economic Order ( NIEO): a set of principles and policies to regulate restrictive trade practice of MNCs
  36. 36. Continued… • Institutional initiative for regulation of MNCs and international plane a. UN Commission on Transnational Corporations (established in 1979, closed in 1993) b. Commission on International Investment and MNCs ,1995 ( as part of UNCTAD) c. Sessional Working Group on Working Methods and Activities of MNCs ( set by UN Sub-commission on Human Rights) d. UN Global Compact ( Ten Principles in the areas of human rights, labour, environment and anti-corruption ) 1999, 2002
  37. 37. Continued… • Regional bodies such as European Union, European Council and Organisation of American States • Way forward a. Development of normative standards b. likelihood of creating special status for MNCs in customary international law c. Concerted effort for the development regulatory regime with attribution of legal responsibility
  38. 38. The status of terrorist organizations • The terrorists organizations do not enjoy any international legal personality for the simple reason that states are not willing to grant them any status in international law. States think they should be tried under domestic criminal system. • The most important point of argument against their status is based on jurisprudential contradiction or juridical difficulty. If responsibility or obligation under international is attributed to them, they must also have rights in international law. • The initiative for developing international law to combat global terrorism has no concern for the status, personality and competence of terrorists under international law.
  39. 39. Continued… • Responsibility under international law State sponsored vs. private terrorism Article 8: Responsibility of States for Internationally Wrongful Acts of 2001 Decision of ICJ in the Case Concerning the Application of Genocide Convention ( Bosnia and Harzegovina v Serbia and Montenegro) • Rigid approach: non-attribution of responsibility under international law • Flexible approach: Instances of financing and safe hourbering.
  40. 40. Conclusion • The concept of personality is divisible, it can be lost and acquired. • Personality can be partial or full. • Personality of states and others need not be identical, it can be dissimilar in terms of rights and obligations.
  41. 41. International legal personality • Determine the status of terrorist organisations in international law in terms of their legal personality. Do you think that terrorist organisations should be attributed legal personality in international law in order to curb terrorism in wider scale.
  42. 42. About Class Test on 29th March • 1. Class test 20% on 7-8 March (mandatory for all) • 2. Starts sharply at the start of your tutorials (ie 11.05/12.05/1.05 etc) with 5 minutes question reading time, ie writing starts sharply at 11.10/12.10 etc • 3. Late comers will not be given any extra time • 4 Writing ends sharply at 5 minutes ahead of your tutorial ending time (ie 11.50/12.50), ie total 40 minutes writing test (example 11.10 to 11.50) • 5. Form: short questions/answers (not essay or hypothetical) • 6. First 4 sessions (ie up to statehood and recognition inclusive) will be covered. • 7. Closed book test (no international law book is allowed), but notes are allowed • 8. Students are required to bring their respective answer papers and pens • 9. There is no alternative or substitute for this mandatory class test
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International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law. Courtesy: Bangladesh Law Digest Website: www.bdlawdigest.org https://www.twitter.com/bdlawdigest https://www.plus.google.com/+BdlawdigestOrg1 https://www.linkedin.com/in/bdlawdigest1

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