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Lecture

Lecture 4

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Department
Social Science
Course
SOSC 1130
Professor
Awalou O
Semester
Fall

Description
Lecture 4 The Relation of Municipal and International Law Nature of the Problem  Municipal and international law are two different systems  Their relationship is  In case of conflict, which rule prevails?  How do rules of international law take effect in the internal law of states? System of International Law  It is not self-sufficient because there is no single government  It is a decentralized system with no government, no legislative body to enact laws for the rest of the states, and also no enforcement system o It needs states to provide the execution of rules  In that sense, international legal order is a particular legal order  There are two basic theories developed to explain the interplay between domestic and international systems of law o Dualist o Monist Dualist  Two founding fathers o H. Triepel o D. Anzilotti  The dualist approach believes that there are two separate legal systems that exist independently of each other  They differ as to: o Subjects:  Individuals in municipal  States in case of international o Sources  Treaties and customs for international  Parliamentary statutes and judge made law for municipal o Content  The functioning of the state and relations between individuals for municipal  Relations between sovereign states for international o Consequence  International law cannot address itself to individuals  It must be transformed into national law  Treaty is translated through the state legislature  There are two steps: o A treaty is ratified o It is translated into municipal law  The treaty law becomes national law  Is one system superior to the other? o There is no issue of hierarchy because they are separate but there is the issue that the construction is too categorical  There is no in-between o There is an adherence to Positivism  The theory of sovereignty o It is inspired by a moderate nationalism because there is a need for a national system to comply with international rules Monist  JJ. Moser and C. Bergbohm rejected the dualist idea and stated that there was only one order  They called this order the legal order  They state that law is a unitary perception but there is debate on whether the two can interact  There are two monist doctrines o Moser:  One single normative order  International law is not international but an external public state law  Domestic law prevailed over international legal rules  No hierarchy because there is only one order  It denied the existence of international law as a distinct and autonomous body of law  National interests over international interests  It reflected extreme nationalism and authoritarianism of Great Powers o Kaufmann  It advocates the primary of international law  There is a unitary system and international and municipal law are part of one normative system  There is normative hierarchy  International law, constitutional law, statutory law  Norms are in international law and must be throughout the hierarchy and cannot contradict  Pacta sunt servanda (Agreements must be kept)  IL is at the top of the pyramid and validates all the legal act of states  Domestic law must always conform to international law  In case of conflict, all municipal law contrary is declared illegal  From the point of view of IL, the ‘transformation’ is not necessary  The rules of IL can be applied as such  The subjects of international and domestic law are not radically different, both individuals  The sources of international law and municipal law are the same because the international system controls all national legal orders  International values override domestic ones  Internationalism and pacifism are the ideological background Monist and Dualist: What conclusions?  Both are limited in their construction  Monistic are utopian and therefore it cannot be said that international law is always at the top of the pyramid because in practice it is not that clear  Dualistic: many international rules address themselves directly to individuals and impose obligations on them or grants them rights The attitude of IL to Domestic Law  IL does not entirely ignore domestic law o Municipal law is used by ICJ as evidence of customs o Certain questions decided by state law  General principal of international law → a state cannot plead a rule or a gap in its own internal law as defense to a claim based on international law o It cannot use before ICJ its municipal law in order to not apply international law  Article 27 VCLT: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. → also article 46 (1) VCLT  States required to perform their international obligations bona fides o But → liberty to decide on the modalities of such performance Alabama case law  The state of Alabama joined the Confederate States of America (South) during the American Civil War between the North and South after separating from the United States on January 11, 1861 o The South focused on cultivating land and were dependent on slaves o The North was more developed and civilized and did not need slaves o It provided a significant source of troops and leaders, military material, supplies, food, horses and mules  They tried to find allies outside of the North and South o The more allies meant a better chance to win the war o The best ally at the time was Great Britain  Great Britain declared itself neutral even though there was no legal obligation to do because they had a right to wage war o Legal consequences because the state is not allowed for their territory to be used for war o The South asked GB to provide them with warships but then did it clandestinely o Construction of vessels or warships was a violation of neutrality  At the end of the Civil War, the North won and asked for reparations o They stated that GB violated neutrality and therefore had to pay o The two countries decided not to wage war and settled the dispute by using arbitration o They decided to change the practice of negotiation  They both hired lawyers and then together chose a third lawyer  Together, the three chose two other arbitrators o The US stated that by declaring itself neutral and then allowing the South to build a warship on land meant they violated neutrality and had to pay o The counter argument was that the British was a neutral state and did not violate any rules because in Great Britain there is a law called the British Foreign Enlistment Act (1819) that states before prosecuting for neutrality there must be all the proof and there was not enough  It applied its own national laws  They could not arrest those building the warships because they did not know it was going to be used in the war o The British Foreign Enlistment Act of 1819 could not be brought forward as a defense  No state can used internal laws to avoid international obligations  GB paid US mone
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