Chapter 4 – International Law and Domestic Legal Systems Flashcards
What is the Monist Approach to international law?
Law as a unitary global phenomenon governed by international law envisaged as hierarchically superior to domestic legal systems.
It was proposed by Hans Kelsen.
What is the Dualist Approach to international law?
Dualist Approach: international law and the municipal legal systems are separate.
International law governs relationships between states – or between states and intergovernmental organisations.
Municipal legal systems regulate relations between individuals, or private companies, inter se or between them and the national public administration of the country where they reside.
What is the doctrine of automatic incorporation in common law countries.
Since in these countries the law is created by way of jurisprudence and custom, International law customs were directly applied.
They are transformed into domestic law either via stare decisis, or via Parliamentary Statutes (e.g.: the UK 1978 State Immunity Act; Alien Tort Claims Act).
This has in recent times been quite tempered and international custom is only automatically applicable if it is compatible with statutory legislation or judicial precedent of final authority.
What was the dispute between Italy and Germany in 2012 in the ICJ about?
The dispute was about whether the exercise of jurisdiction by Italian National courts over the civil claims filed to Germany demanding compensation for the crimes committed during WW2 was in breach of international law and the principle of immunity of states.
What was the result of the ICJ dispute between Italy and Germany in 2012?
Italy has violated the immunity that Germany enjoys under international law by allowing claims to be brought up in their national courts, limiting the freedom of Villa Vigoni And by declaring enforceable in Italy a judgement that took place in Greece.
What are some considerations to remember when contemplating the use of international legal custom in common law countries?
There is a process carried out by state officials to ascertain (or verify) that the custom in fact does exist.
Changes in international legal custom suppose also an immediate change in application.
Even though the automatic application has been tempered, the authorities of the country can still make these customs part of the law by transforming then using stare decisis.
What is one way in which the UK differs from most countries in the process of ratification?
In the case of the UK if a treaty requires further implementing legislation, this is done before ratification.
an example can be a treaty that calls for changes in the law.
How are treaties ratified in the US?
The US Constitution gives to the Senate the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch.
What is the Alien tort claims act in the US and why is it controversial?
The Alien Tort Claims Act is a US law on the jurisdiction of US courts in cases concerning violations of public international law. It allows for non-US citizens to bring civil actions before US courts in certain situations. This applies even if the events in question occurred outside the United States.
One such instance of use of this act was the Filartiga VS Peña Irala case.
Its application has been very controversial, as it would allow one state (the US) to judge acts commited outside its borders and concerning people that are not its citizens.
What is the current consensus on the application of the Alien Tort Claims Act in the US?
The US supreme court has adopted a restrictive interpretation of the Act since 2004 in the Sosa V Alvarez-Machain. Reinforced by the restrictive application in 2013, Kiobel v Royal dutch petroleum co.
In this last case the supreme court rejected the statute may ground the exercise of universal, or extraterritorial jurisdiction by US federal courts.
Namely with claims that have no territorial or links with the US.
When is a treaty provision considered self executing?
A treaty provision is considered self executing when its text is sufficiently precise to create rights and obligations that may be enforceable in domestic courts.
Nevertheless it should be previously ratified.
What are the steps of ratification of a international law treaty in civil law countries?
Negotiation: Before a treaty can be ratified, it goes through a negotiation phase where representatives from different countries discuss and draft the treaty’s provisions. This stage involves extensive deliberations, consultations, and sometimes multiple rounds of negotiations.
Signature: Once the treaty’s provisions are finalized, authorized representatives from each participating country sign the treaty. This signifies their intent to be bound by the treaty’s terms, although signature alone does not legally bind the country to the treaty.
Internal Approval: In civil law countries, the treaty must go through an internal approval process before it can be ratified. This typically involves the executive branch of the government, such as the head of state or the cabinet. They review the treaty’s provisions, assess its compatibility with domestic laws, and evaluate its potential implications for the country.
Parliamentary Approval: In many civil law countries, parliamentary approval is required for the ratification of international treaties. The executive branch usually submits the treaty to the legislature for review and approval. The parliament examines the treaty’s content, discusses its implications, and may hold debates or committee hearings to assess its merits.
Ratification: Once the treaty is approved by the executive and the parliament, the final step is the formal act of ratification. Ratification is usually performed by the head of state or another designated authority. It signifies the country’s official consent to be bound by the treaty’s provisions. Ratification may involve the exchange of diplomatic instruments or the deposit of an instrument of ratification with the relevant international organization or depositary.
Implementation: After ratification, the country is responsible for implementing the treaty’s provisions within its legal system. This often requires enacting domestic legislation or modifying existing laws to align with the treaty’s requirements. The specific implementation process can vary depending on the country and the nature of the treaty.
