Law Paper

 

 

 

 

 

 

 

 

 

 

 

Public International Law

 

Name:

Course:

College:

Tutor:

Date:

 

 

 

 

Introduction

Jus gentium or the law of nations and jus inter gentes or international agreements and conventions are the two compositions of Public international law. The international law has an extensive sphere of influence because it covers both independent states and the Vatican[1]. The past century has witnessed a rapid growth of organizations that should be subjected to this jurisdiction. In the recent past, experts have seen a need to include international trade laws, humanitarian international laws, and human rights law and some individuals under the jurisdiction of the public international law (Schmitt 129).

The origin of public international law is general principles of the law, custom international treaties and judicial decisions and teachings. Customs are derived from common practices supported by legal obligation of different states. Obligations that independent states in the treaties commit are the international treaties, and judicial decisions are guidelines to be used in international tribunals for similar cases in the future. The international law is responsible for overseeing how territories are acquired, immunity of states, [2] and peaceful coexistence of different states, as a result of their relationship. Different nations and states are the main contributors in the legal arena. This research will look at the relationship between the domestic laws and international laws. It has three sections: a general view of public and international law, the meaning of treaties and their influence in the corpus of the international law and analysis of monism and dualism as means of incorporating international laws to domestic laws.

Public International Law and Domestic Law

International law is a set of rules and principles used to govern the conduct of sovereign states or nations and organizations formed by different governments, in relation to the organizations formed by different nations and the sovereign states (Jackson 45). When passing judgment or making decisions, none of the states is superior, they assume a horizontal structure. The basic foundation on what international laws operate is that all nations are sovereign and hence equal. As a result, none of the states participating in the international law is compelled to participate. On the contrary, the domestic law has adopted a vertical structure because it is enacted as a binding legislation by the legislature.  Participation in the international law is a result of self-interest gained as a result of enlightenment, and not submission to a higher authority.

International Treaties

The easiest avenue through which international law can reach the corpus of the domestic law is the treaties. As defined by The Vienna Convention[3] a treaty is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation” (UN 3). States participating in these organizations are required to ensure that their domestic legal orders allow them to meet their legal obligations, as much as the international court or tribunal will use pertinent principles of the international law to interpret a treaty.  

Many states have included the Universal Declaration of Human Rights of 1948[4] in their domestic laws. The declaration was made at the global scale, but nation’s participation in the international laws has incorporated it in their Bill of Rights without making any modifications. The United States has amended the first ten clauses of the Bill of Rights (Vile 113). In the United Kingdom, The Bill of Rights was incorporated in the English Statutes before it became part of the international law. Australia is also another nation that has adopted the Bill of Rights in their constitution. This is an indication that domestic laws can be a reflection of the international laws. The International Court of Law grants a subpoena to any of the participating nations that violate the set law.

Another significant example of how international laws are incorporated in the domestic laws is the North Atlantic Treaty (Organization) of 1949 that united the United States of America, Portugal, Canada, Denmark and Norway in the Treaty of Brussels[5]. The conception of NATO was aimed at protecting the member states from Russia and allies of Russia. It is also charged with the responsibility of maintaining peace among former enemies in Western Europe. Every member state agrees to lend military support on any of the member state attacked as it treats the attack as its own (NATO para.1). The agreements of the NATO are reflected in the domestic laws of the respective member states. A clear example is the support the member states gave the US when they invaded Afghanistan and Iraq.

The Kyoto Protocol of 1997 also enhances the inclusion of international law in the domestic laws. The Protocol gives a provision of collective responsibility in addressing the issue of global warming and obligations for each sovereign state, to reduce their levels of emitting greenhouse gas. Annex I[6] nations that have ratified the protocol are mandated to amend their constitutions to allow them fulfill their obligations. Some nations for example Australia ratified the protocol but are yet to amend their constitution. The amendment is supposed to allow a reduction of levels of carbon released in the atmosphere. [Section 51 (xxix)] gives a provision for such amendments. The amendments give the Commonwealth power to legislate as regards external affairs (Garner 92). In March 2007, the United Kingdom took a climate change bill to parliament after ratifying the Kyoto Protocol. The bill was passed, and the government can now control the emission of greenhouse gases in the atmosphere: a good example of the relationship between the domestic law[7] and the international law (HMG 13).                  

Monist versus Dualist Legal Systems

The relationship between the municipal law and the international law is explained by the two theories. Dualist argues that there is a disparity between the international law and the municipal law[8]; hence, the two should be treated as separate legal structures. Therefore, to apply international law in a domestic arena, it must be transformed into domestic laws through the legal acts of the state in question (Jennings para.3). This perception may create conflict in the existing systems. This is possible because different systems may legislate on the same issue but arrive at different conclusions. The conflict is not significant because it does not affect laws; rather, it affects the obligations of the sovereign state in question. Consequently, if the state treats the domestic law as superior to the international law, the state is answerable to the international community for failing to meet her international obligations. Nevertheless, rarely do nations breach their international obligations, and citizens do not have a qualm. As such, citizens do not have a right to accuse their governments of failing to grant them rights stated in the international treaty. Moreover, the international law does not impose duties on citizens directly (CW para.7).    

Are you a student looking for custom law papers or custom written papers that are plagiarism free and top notch ? Visit us in our custom writing service and buy custom essays written by our professional writers. Do not however use sample papers you find on the internet since this can lead to plagiarism and copyright penalties.

According to the monism theory, all laws are derived from the common normative order in the universe. Therefore, the international law does not need any transformation to be applied in the domestic legal sphere (Jennings para.4). Proponents of this theory consider the international law as superior to the domestic law; the domestic law is subject to the requirements of the international law. There are constitutional provisions that integrate the international laws on some national legal frameworks. Thus, there are rights and duties of citizens, which make international law superior to national laws. Therefore, a local court can give priority to international laws over the national laws. This system creates a single system where the international law is incorporated in national laws without an equivalent national legislation (CW para.6).

The United Kingdom has adopted the system of dualism in relation to incorporating the international law to the national law. Before any international law becomes effective, the parliament must pass an enabling act. Separation of powers is the principle behind the practice. The executive is given the power to sign treaties on behalf of the state at the international level. In case the parliament is not involved in making the international law part of the domestic law, the executive is bestowed with power to change the domestic law without it. In December 1997, the United Kingdom enacted the Landmines Act of 1998, to endorse the Treaty agreed in Ottawa (Canada). The nations that participated in the formation of that treaty were required to ban trading in anti-personnel landmines and their usage (Le Sueur et al., 49).

It is important not to conclude the fact that not all treaties become law. Some treaties do not qualify to be classified as law, but they are neither ignored entirely by the judges in the United Kingdom. In a case where the court is required to interpret an equivocal statute, or confirm how the rule of common law should be developed, the country can refer to its obligations as far as the treaty is concerned. The court may read the law in a way that is different from such treaty obligations. It is also agreed that a govern can give a person legitimate expectation that said the government will meet its obligations even if the treaty is not yet incorporated in  the national law, when the government is entering in to a treaty (Le Sueur et al., 50).               

The United States uses the parliamentary system of government. The constitution has a provision of incorporating international treaties into the domestic law without any legislative transformation. The constitution of the United States has a provision of adopting international laws to the domestic legal structure as long as it is a signatory of the treaty (Jennings para.7). This is a good example of the monist system that assures the treaties are superior to the Legislations of the land. 

The principle of duality still applies in the United States. The constitution gives a provision that the Senate needs to give the president “Advice and Consent” before the president makes a treaty. That is, as long as the Senate has not approved the treaty, it cannot become a law. In the United Kingdom, the executive does not need the consent of the Parliament to participate in a treaty. The United States checks the powers of the president in partying to a treaty. Clinton, Obama and other presidents of the United States[9] have been criticized for failure to ratify the Kyoto protocol. Their explanation is the legal matrix that governs presidential powers and treaties.

Franklin Roosevelt was prompted by the Senate alongside other fifty member states to ratify the formation of the United Nations[10] by the Allies in 1945. The treaty became a law in the United States of America and sections of the charter were incorporated in the US constitution (Henkin 250)[11]. In the United States of America Treaties are referred to as ‘self-executing’ because of this constitutional position. The US Congress is responsible for enacting appropriate legislation when the need to criminalize certain acts arises because not all are ‘self-executing’.

Australia has a parliamentary system. The model is similar to the United Kingdom in relation to signing of treaties and including them in the domestic structure of law. As such, until a statute to incorporate the international law is enacted, the international law cannot affect the municipal law directly. In Australia, the constitution gives the executive powers to make and ratify treaties but the parliament is responsible for changing laws. Therefore, for a treaty to be included in the municipal law, there has to be concerted effort between the parliament and the executive (Jennings para.12).

Australia has a general policy that Legislations need to be enacted before the country participates in a treaty. By so doing, Australia does not go back on its treaty obligations once it signs it. The argument is that the country will not breach its obligations to the international law as this is possible if the parliament fails to enact legislation for whatever reason.  For instance, Kevin Rudd, the former Premier of Australia ratified the Kyoto Protocol in 2008. Until 2011, the treaty was not implemented because he lacked the legislative support to pass it in parliament.   

 

Conclusion

The relationship between the international and the municipal law is complex. The international laws govern the sovereign states, which are governed by domestic laws at a local level. Therefore, it becomes necessary to incorporate international laws in the national laws, so that there is no inconsistency when the government is meeting its international obligations. International law becomes part if the domestic law through treaties. This is possible because any nation participating in a treaty has obligations to meet, and the way out is to enact Legislations that allow such provisions.

Monist legal system and dualist legal system are the two ways through which domestic laws accommodate international laws. The monist system wholly adopts the international law without making any transformation, while the dualist system argues that international laws need to be transformed before being incorporated into the domestic law. United States is one of the nations that have adopted monist system, while the United Kingdom and Australia are some of the nations that have adopted dualist system.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Works Cited

CW (Concordat Watch). “How do concordats mesh with a country’s laws?” Retrieved on 30 June, 2010, from: <http://www.concordatwatch.eu/showtopic.php?org_id=872&kb_header_id=38721>

 



[1] Sometimes called the Holy See, it is a sovereign state within Italian territory where the Pope resides.

[2] This refers to the protection that the public international law accords any sovereign state within its jurisdiction from being sued by another state under its legal system.

 

[3] This was a convention held in Vienna, Austria on May 23, 1969, to design the law of treaties.

[4] The General Assembly of the United Nations adopted and promulgated on December 10, 1948 the Universal Declaration of Human Rights. The Assembly called on all member states to publicize the text of the Declaration, disseminate it, read and expound it principally in schools and other educational institutions.

[5] It comprised of Belgium, UK, Netherlands, France, and Luxembourg. Signed in March 17, 1948, it called for collective defense of the territories of member states.

 

[6] Refers to the 37 industrialized countries committed to reduce the emission of greenhouse gases and two groups of gases: perflourocarbons and hydroflourocarbons; they produce by 5.2% from the 1990 level (Strom 234).

[7] HMG (Her Majesty Government). Draft  Climate Change Bill March 2007. London, UK Department of Environment, Food and Rural Affairs, Nobel House, 2007.

[8] Refers to the national, internal, or domestic law of a sovereign state used in contrast to international law. This term applies holistically to all bodies of law found within a state at all levels such as national, state, provincial, regional, territorial, and/or local. International law does not make this distinction but rather treats them as one body of law.

 

[9] Refers to the national, internal, or domestic law of a sovereign state used in contrast to international law. This term applies holistically to all bodies of law found within a state at all levels such as national, state, provincial, regional, territorial, and/or local. International law does not make this distinction but rather treats them as one body of law.

[10] These countries fought alongside the United States, the United Kingdom, and the Soviet Union during World War II against the Axis led by Germany, Italy, and Japan.

[11] Henkin, Louis. Foreign affairs and the United States Constitution. New York, NY: Oxford University Press, 1996