a level law essay

a level law essay

The Impact of International Law on Domestic Legal Systems

1. Introduction

At the heart of this matter lies the relationship between international and domestic law and the effects of this on state sovereignty. Jean Bodin defines sovereignty as the “supreme power over citizens and subjects, unrestrained by law,” which is a concept that has underpinned modern international law. It is an undisputed fact that international law has evolved according to the requirements of state actions. However, the idea that state sovereignty remains unfettered is no longer sustainable. International law has developed so as to create rights and obligations for individuals and non-state entities, and in doing so has required the states themselves to have an internal legal framework in order to give effect to international legal rules. This has, in turn, altered the way the state views the law, changing it from a mere tool of governance to a means of safeguarding state interests.

In the recent past, international law has come to have a direct influence on domestic legal systems. This is a result of primarily two influences: a “horizontal” influence brought about by the growing importance of international organizations and their legislation, and a “vertical” process whereby domestic systems have had to adapt in order to adhere to the international standards of their treaty obligations, whether they are customary or conventional. The specific effect, be it direct or indirect, is seen in legislative activity by states, judicial decisions, and executive conduct. This has made complex the traditional doctrine of the sovereignty of states. The days of total immunity for the state are over. The interests and rights that a state has at an international level are now heavily influenced by its obligations to other states and its duties to individuals, groups, and corporations. This has led to a blurring of the lines between international and domestic law.

2. Overview of International Law

This section seeks to explore the nature of international law, its binding effect, its relationship with domestic laws and states, and attempts to define international law. In many respects, international law is the pluralistic system of laws and principles that regulate the behavior of states and other international actors (such as international organizations and transnational corporations) in their international relations. It consists of a body of rules and principles designed to regulate the relations between states, and in some instances, between individuals. It also encompasses the rights and duties of states, and while there is no parliament to make laws for states as there is at the domestic level, the principles and rules of international law are found in a number of sources such as treaties, customary international law, general principles, jus cogens (peremptory norms) and academic writings. The primary concern of international law is the promotion of international peace and security, and while it is arguable that the body of international law tilts in favor of the developed states and the power elite, there are clear instances where international law has been a force for the sake of humanity (such as the various human rights conventions and treaties).

3. The Relationship between International Law and Domestic Legal Systems

In order to correctly illustrate the relationship between international law and domestic legal systems, we must examine the different theories of how they come together. Essentially, the two theories contrast on whether the domestic legal system is an integral part of international law or whether it is a separate body that must be bound to international law. Monism puts the international law at a higher pedestal, suggesting that the domestic legal system is subservient to international law. Meaning that international law will, in fact, become part of the law of the land. Dualism, on the other hand, stipulates that international law and municipal law are separate. This, in mind, it is possible for international law to be in conflict with the domestic legal system and in such a situation, it is the international legal system that will prevail. Now, in order to fully understand the concepts of monism and dualism, we will need to look at specific examples of how they come into play.

A. Introduction B. International Law and Domestic Legal Systems are Separate and Distinct C. Monist D. Dualist E. Conclusion

4. Challenges and Limitations of Incorporating International Law

Incorporating international law into domestic legal systems faces several challenges and limitations. These can be classified between problems arising at the national level on the one hand and difficulties with international law itself on the other. At the national level, acceptance of an international legal rule does not always guarantee its translation into domestic law, whilst conversely, the act of giving effect to a rule may be seen to imply an acceptance of it, thereby limiting the state’s freedom of action in the future. In some cases, notably Gabcikovo-Nagymaros, the International Court has ruled against a state for breach of an international obligation, the fulfillment of which would conflict with an act of domestic law – in this instance, Hungary’s decision to shelve a dam-building project on the Danube. The Court found that the decision constituted a breach of the Treaty on the Protection of the Danube, by reason of Hungary’s obligation erga omnes to contribute to general environmental protection.

5. Conclusion

But it was recognized by the Lord President of the Council in a statement in the House of Lords on the treaty with Persia of 1921 regarding the meaning of ‘approve’, and has been reaffirmed by the present or recent declarations of several states concerning Article 18 of the Statute of the ICJ. Successive Secretaries of State in the UK have also emphasized the usual approach in accordance with the general law to treaties affecting the rights of other states.

Recent work by the International Law Commission, which is demonstrating the identity of general international law and the law to the minimum standard, strengthens and makes timely the following examination of the Dominions’ treaties, legislation, and practice in regard to demands by foreign states for satisfaction of their rights under the general law. The Dominion’s official confirmation of the document as authentic is an interesting example of the acceptance of an international obligation where the act of confirmation is approved by domestic law. In no Dominion has this been done by express legislation. In some cases, it may be derived from or confirmed in an address to the Crown or Governor, in others by a statement or comment in an authorized publication. This must be distinguished from the later practice where particular conventions or covenants are confirmed by enabling legislation, which provides for their execution if necessary by coercive measures. This later practice has always been implicit in the confirming legislation, as seen in the actual cases where approval of conventions has been followed by the endowment of their requirements with the coercive force of mandatory statutes or by delegated legislation.

There can be no legal vacuum in the international system. If international law did not impact on the domestic legal systems, no states would commit international wrongs. The force in support of the minimum standard, cited above, is primarily the result of the memorandum of the Secretary of State for the Dominions on the Maintenance of International Peace and Security. Written by Sir Eric Beckett in October 1938, this became the subject of a wide exchange of views within the Commonwealth and is one of the earliest documents evidencing an attitude to international problems which has been the source of the great developments immediately below the UN Charter towards pacific settlement and collective measures for the maintenance of the general law.