W102 TMA 01 grade 78 PDF

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First TMA for W102 19/20. Graded 78....

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RW TMA 01 (1) Throughout time different societies have created sets of rules in order to regulate themselves (The Open University (‘OU’), 2019a, 1). Two examples being domestic law and international law. These differ to one another and can be implemented and enforced in various ways and differently in different states.

Domestic states have domestic law to govern everything within that state and punish individuals who do not follow whilst “international law regulates the interactions and relationships between sovereign states” (OU, 2019a, 1). It is evident that the societies that domestic and international law applies to differ. Domestic law applies to a society of individuals within a state and international law applies to a society of various states.

One difference between the two is having a higher source of power. With domestic law individuals recognise a legal system that enforces the law. This does not apply to international law since the states make laws for themselves and has no hierarchy as they are “considered, in theory, to be equal partners” (OU, 2019a, 1). This shows states have no real incentive to follow their laws whereas individuals who break domestic law who would expect some repercussions from the higher sources of power such as the police if caught. This opens the discussion of whether these laws are real laws. If adopting John Austin’s opinion that laws are general commands (John Austin (1832), cited in Hathaway and Shapiro (2011, p. 261)), it is likely international law would not be considered so and domestic law would.

The way international law is implemented and enforced can depend on what type it is. While customary international law may be a part of UK law without a statute, treaties can only be honoured if they have made their way into domestic law but in the USA treaties that are “ratified by Congress [have] a status” (Lowe, 2015, p.40). Customary international law is “behaviours that develop into practices” (OU, 2019a, 3.3). Something is considered this if opinio juris and state practice is shown meaning “the practice is deemed to be a binding rule” (OU, 2019a, 3.3) and it “is widespread and consistent” (Thirlway, 2010, p.105) respectively. An example is torture. The Criminal Justice Act 1988 (Torture) (Overseas Territories) Order 1988 modified UK

RW TMA 01 law to honour the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the US ratified this in 1994. Article 2(1)(a) Vienna Convention on the Law of Treaties 1969 defines a treaty as “an international agreement”. Once a treaty has been agreed to, a state is expected to follow it, a legal principle known as pacta sunt servanda (OU, 2019a, 3.2). The European Convention on Human Rights 1950 was implemented into UK domestic law through the Human Rights Act 1998 (OU, 2019a, 3.2.2). In conclusion international law has shown to be quite diverse in its differences with domestic law and the varying ways it can be implemented despite some controversy surrounding whether it can be enforced.

2(a) Devolution in the United Kingdom is when Parliament delegates its law-making powers to other nations (OU, 2019b, 1.2). The Scotland Act 1998 created a Scottish Parliament which has law making power in some matters. The Scottish Parliament has legislative competence in these matters as they can create law surrounding them. Legislative competence is a must for all devolved nations to be able to create law in a matter (OU,2019b 2.2.1) for example in 2011 the Welsh Assembly got “full law-making powers in relation to 20 devolved areas , set out in Schedule 7 of the Government of Wales Act 2006” (OU, 2019b, 3.2) and therefore has legislative competence in those matters .

2(b)(i) Section 6(2)(e) Northern Ireland Act 1998 states that the Northern Ireland Assembly would not have legislative competence if it discriminates based on political opinions. This matter in question clearly discriminates over all political opinions except environmentalism and so the Northern Ireland Assembly would not have legislative competence over this.

2(b)(ii) The Northern Ireland Assembly would not have legislative competence if the matter is applicable to other places outside of Northern Ireland (Section 6(2)(a)

RW TMA 01 Northern Ireland Act 1998). The Northern Ireland Assembly would not have legislative competence to establish a new legal drinking age for the whole of the United Kingdom as it is trying to legislate other nations than themselves. 2(b)(iii) If a matter is “incompatible with any of the Convention rights” the Northern Ireland Assembly will not have legislative competence in it (Section 6(2)(c) Northern Ireland Act 1998). Article 11 of the European Convention of Human Rights (‘ECHR’) relates to freedom of association “including the right to form and join trade unions”. This shows the Northern Ireland would not have legislative competence to make trade union membership illegal as this explicitly conflicts with article 11 of the ECHR.

2(b)(iv) Section 4 (1) of the Northern Ireland Act 1998 states anything defined in Schedule 3 is a reserved matter and paragraph 4 of Schedule 3 states “civil aviation but not aerodromes”. This matter could be considered a reserved matter as long as the flights going over Northern Ireland are civil and not military. Westminster Parliament has power over reserved matters however, with permission of the Secretary of State, the Northern Ireland Assembly can have power (OU, 2019b, 4.4) by “amending Schedule 3 so that the matter ceases to be” (Section 4(2) Northern Ireland Act 1998) if they believe a “reserved matter should become a transferred matter” (Section 4(2)(a) Northern Ireland Act 1998 ). This means that if the Northern Ireland Assembly could have legislative competence in this matter as long as the Secretary of State for Northern Ireland approves and goes about amending paragraph 4 of Schedule 3. (3) One skill I used whist studying block one is being organised by planning and prioritising. I planned when I would study around my work shifts and would block at least one full day a week for it and rest in shorter blocks. Although this worked well for me, life did get in the way sometimes and would fall behind so in the future I think I would benefit from planning to stay a week or so ahead of schedule to accommodate this.

Another skill I used is skim and scan reading. I found it useful with this assignment specifically as it allowed me to find the relevant information to answer the questions

RW TMA 01 more efficiently. Think this is a great technique but find myself focus reading when I should be skim or scan reading. This should improve in future with practice and possibly skimming and scanning smaller sections of text at a time. Word count: 1097

RW TMA 01 References

Books Lowe, V. (2015) International Law: A Very Short Introduction, Oxford, Oxford University Press. The Open University (2019a) W102 Unit 3: International law [Online]. Available at https://learn2.open.ac.uk/mod/oucontent/view.php?id=1479587 (Accessed 13 November 2019). The Open University (2019b) W102 Unit 2: Devolution [Online]. Available at https://learn2.open.ac.uk/mod/oucontent/view.php?id=1479585 (Accessed 13 November 2019). Thirlway, H. (2010) ‘The sources of international law’ in Evans, M. (ed.) International Law, 3rd edn, Oxford, Oxford University Press. Articles Hathaway, O. and Shapiro, S. (2011) ‘Outcasting: enforcement in domestic and international law’, Yale Law Journal, vol 121, no 2, pp. 252-349.

Legislation The Criminal Justice Act 1988 (Torture) (Overseas Territories) Order 1988 (SI 1988/2242) Northern Ireland Act 1998 c 47 Scotland Act 1998 c 46 International instruments European Convention on Human Rights United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Vienna Convention on the Law of Treaties 1969...