Chapter 3 - Simple notes in the form of mind maps PDF

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Summary

Warning: TT: undefined function: 32 Practical questions: How does the international court decide on issues involving a rule of national law How do rules of international law operate in the national legal system? Are they treated by States on the same footing as their own national law? In the event o...

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Introduction

Practical questions:

International law is applied in the

1. How does the international court decide on issues involving a rule of national law

international sphere whereas national law in the domestic sphere. There are two separate spheres of application: a) International sphere b) Domestic sphere

2. How do rules of international law operate in the national legal system? 3. Are they treated by States on the same footing as their own national law? 4. In the event of conflict, which law prevails?

The discussion is divided into two parts: 1) Role of national law in the international sphere. 2) Role of international law in the national legal system

Role of the National law in the International sphere. Certain National law concepts and the decision of national courts may be used as sources of International law by virtue of Article 38(1)(c) and Article 38(1)(d) of the statute of the International Court of Justice. In the Barcelona Traction, Light and Power Co Ltd case, the court, acknowledged the concept of the ‘limited liability company’ to be found in domestic law systems.

Conflict between international Law and National Law However in the case of conflict between International obligations, and the National Law, the International Law prevails. A State cannot rely on its own national law as an excuse for violating international law.

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Article 27 VCLT: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

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Article

13

Draft

Declaration

on

Rights

and

Duties

of

States:

Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

Alabama Claims Arbitration: Britain did not follow the principle of neutrality and argues that Britain does not have any domestic law on principle of neutrality. Court held: Great Britain could not rely on the absence of domestic law in the country for the reason of non-fulfilment of its international obligation. Exchange of Greek and Turkish case: A State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken. Free Zones of Upper Savoy case: France could not rely on its own legislation to limit the scope of its international obligations.

Role of the International law in the National Legal System. There are two theories in applying the International Law in the National Legal System: 1) Monism 2) Dualism

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International law and national

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International law and national law are separate legal systems which exist independently of each other.

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For international law to be applicable in the national legal system, it must first be transformed into national law by national legislation.

application of international law.

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However, many monist say that in the event of conflict, international law prevails.

International court applies international law while national courts apply national law.

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Common Law countries are more to dualist.

law are part of the same legal order. 

Rules of international law can be directly applied in the domestic sphere without the necessity of domestic implementing legislation.

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The principle of direct

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International law is superior to national law.

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Civil Law countries are more to monist....