Domestic law and international relationship

domestic law and international relationship

1 The definition of the relationship between international law and municipal or domestic law is closely connected with the concept of law in general on the one. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their. International law is the set of rules generally regarded and accepted in relations between .. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a.

In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24 2which states that "in discharging these duties exercise of primary responsibility in international peace and securityit shall act in accordance with the Purposes and Principles of the United Nations".

The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

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States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justicelocated in The HagueNetherlands.

The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings.

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the court's competence and jurisdiction.

Often enormously complicated matters, ICJ cases of which there have been less than since the court was created from the Permanent Court of International Justice in can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist international lawyers.

As of Junethere are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states or increasingly, international organizations are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

Investment treaties commonly and routinely provide for enforcement by individuals or investing entities. The only one claiming universal jurisdiction is the United Nations Security Council. East Africa Community[ edit ] There were ambitions to make the East African Community, consisting of KenyaTanzaniaUgandaBurundi and Rwandaa political federation with its own form of binding supranational law, but this effort has not materialized. Union of South American Nations[ edit ] Main article: It intends to establish a framework akin to the European Union by the end of It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations[ edit ] Main article: It started with the Cartagena Agreement of 26 Mayand consists of four countries: BoliviaColombiaEcuador and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries. International legal theory[ edit ] Main article: International legal theories International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements.

Some approaches center on the question of compliance: Other approaches focus on the problem of the formation of international rules: Some of these approaches are based on domestic legal theorysome are interdisciplinaryand others have been developed expressly to analyse international law.

Classical approaches to International legal theory are the Natural lawthe Eclectic and the Legal positivism schools of thought.

The natural law approach argues that international norms should be based on axiomatic truths. In Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentiumestablished by the consent of the community of nations on the basis of the principle of pacta sunt servandathat is, on the basis of the observance of commitments.

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On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the Peace of Westphalia.

The early positivist school emphasized the importance of custom and treaties as sources of international law. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law.

The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.

domestic law and international relationship

Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. As a result, one would, at least logically, seek to locate Kosovo's constitutional order within one of the above models, while acknowledging the distinctiveness of the former. On the other hand, as Eric Stein acknowledges, most Eastern European countries have accepted the doctrine of incorporation of treaties into the domestic legal order, 20 which suggests that the post-communist European countries have followed a logic that accepts the monist model.

Kosovo is thus thought to have followed the same line. This chapter, however, aims to analyze the relationship between internationally binding agreements treaties and the Kosovo domestic legal order. As such, it is worth noting that international treaties can be part of a monist legal order—such as that of Kosovo—yet their direct applicability and effect are not to be automatically assumed. Hence, particular concern should be paid to the latter question, as the manner in which the treaty becomes applicable is of great importance.

Internationally binding treaties, as opposed to rules of customary international law, become effective after state authorities approve their legal power. The engagement of the parliament Assembly in treaty ratification—within the abovementioned fields—makes the treaty-making process more legitimate domestically in issues of great importance. Overall, it can be asserted that internationally binding agreements, from a Kosovo constitutional perspective, are made binding due to an interaction between the President of the Republic and the Assembly, or simply the President of the Republic.

To look more closely at the question of this chapter, it is necessary to scrutinize what exactly is prescribed by the Constitution of Kosovo in terms of the relationship between treaties and national law.

domestic law and international relationship

As such, Article International agreements ratified by the Republic of Kosovo become part of the internal legal system after their publication in the Official Gazette of the Republic of Kosovo. They are directly applied except for cases when they are not self-applicable and the application requires the promulgation of a law.

The first concerns clarifying whether the relationship between international treaties and national law is based on a monist or dualist model.

domestic law and international relationship

The second concerns clarifying which doctrine applies: And the third concerns clarifying the way in which a binding treaty becomes applicable. As for the first question, the above provision institutes a monist system of relationship between international and domestic law.

That being said, once a treaty becomes ratified and effective, it ex proprio vigore becomes part of national law. In order to become binding, however, it must be published in the Official Gazette. Hence, there is almost nothing that can be used to counter-argue the monist model of relationship between treaties and national law; however, the position of treaties in the Kosovo legal order is still to be explored.

domestic law and international relationship

On the other hand, given that ratified treaties become part of the internal legal order, it can be argued that the Constitution of Kosovo has endorsed the doctrine of incorporation. Besides establishing a monist system of relationship between binding treaties and domestic law, Article Being directly applicable means that the ratified treaty does not need any further law to be enacted for it to be legally effective, and thus institutions are obliged to enforce it directly.

If a treaty is not self-applicable, it needs to be concretized through a domestic legal act, for example a law, 30 and it can be observed that the Constitution of Kosovo distinguishes between self-applicable and non-self-applicable treaties. This, in our opinion, might lead to a faulty order, as if the treaty is not self-applicable, an individual cannot directly rely on the rights and duties prescribed therein 31 until the time the national legislature adopts a law.

This, of course, results in legal uncertainty and allows domestic institutions to exercise their discretion when qualifying a treaty as self-applicable or not, 34 which altogether misbalances the principles of self-applicability and might lead to poorer protection of international norms in the domestic context.

Thus, the constitutional provision in question—given that it makes a distinction between self-applicability and non-self-applicability—may be considered as defective in view of the direct applicability of treaties, and might altogether lead to legal uncertainty. Having analyzed the abovementioned provision, and in light of this analysis, it can be argued that the Constitution of Kosovo embraces a monist model of relationship between international treaties and domestic law, with the establishment of the doctrine of incorporation, while allowing internationally binding agreements to be directly applicable.

Though treaties form part of national law, and though they are directly applicable, the position taken by the norms of binding treaties in the domestic legal order may be questioned.

The Constitution of Kosovo, as a result, provides an answer as to what position treaties have in Kosovo's domestic legal order. Being subject to the Constitution of Kosovo—though prevailing over national laws—treaties cannot thus lead to a pure monist system. Primacy over national laws, and automatic incorporation upon ratification in the domestic legal order make treaties part of a single legal order, together with national law however.

The primacy of the Constitution of Kosovo over ratified treaties is unquestionably linked with Article Laws and other legal acts shall be in accordance with this Constitution. Furthermore, one can argue that, although a ratified treaty will be directly incorporated in national law, it should be domestically constitutional; otherwise, its incorporation should be contested or barred.

Besides regulating the position of ratified treaties, the Constitution of Kosovo features a further provision regarding international treaties. The constitution thus reads: More broadly, in light of the above provision, it can be argued that, besides placing ratified treaties above domestic laws, the Constitution of Kosovo allows for the rules of international organizations of which Kosovo is a member, to be directly incorporated and applied within Kosovo's legal order.

Hence, besides promoting a single legal order, the Constitution of Kosovo allows for the norms of international organizations to become part of its domestic legal order. This leads to the argument that the Constitution of Kosovo allows the polity to ratify treaties which engage Kosovo in supranational organizations—such as the European Union—thus clearly allowing the automatic penetration of the norms of such international organization within Kosovo's legal order, without further scrutiny or a ratification procedure.

In addition, the norms of the international organizations concerned reflect the doctrine of incorporation and direct applicability as well.

domestic law and international relationship

Constitutional review of binding international treaties The supremacy of constitution over binding international treaties, though explored above, should be considered from a constitutional review perspective also.

In view of this, most practically, one can argue that in order for the constitution to have supremacy over binding treaties, it should contain a mechanism that can call unconstitutional any constitution-violating treaty. In this regard, the Constitution of Kosovo provides no special jurisdiction for the Kosovo Constitutional Court to have oversight of the constitutionality of treaties. This lack of special jurisdiction, either in the form of preventive control 39 or repressive control, 40 signifies that the Constitution of Kosovo allows for no judicial mechanism to oversee the supremacy of constitutional norms over treaty norms.

This, as a result, leads to the argument that, though the Constitution of Kosovo recognizes its own primacy, it does not provide for any mechanism to review the constitutionality of treaties. However, the Constitution of Kosovo sets out that: Hence it would be a stretch to say that Article On the other side, the Constitution of Kosovo allows the Assembly to grant additional jurisdiction to the Constitutional Court. In spite of there being as yet no jurisdiction for the Constitutional Court to control the constitutionality of treaties, from the perspective of the constitution itself, it may be argued that the only bodies who can authenticate the constitutionality of treaties are the President of the Republic and the Assembly.

The argument follows, then, that the President of Republic and the Assembly should check the constitutionality of treaties prior to ratifying them. Arguably, the Constitution of Kosovo allows the Assembly to withdraw from treaties, 44 which can be considered a right to be exercised by the Assembly to control the constitutionality of an already binding treaty.

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Besides this, no other form or means of controlling the constitutionality of treaties can be found in the constitution, which of course weakens its supremacy over treaties. However, based on a logical framework developed by G. Danilenko, it can be argued that there is some room for the Kosovo Constitutional Court to engage with the review of constitutionality of treaties.

As a sample case, the Russian Constitution offers no repressive jurisdiction to the Russian Constitutional Court to control the constitutionality of a treaty; however the latter can name a treaty unconstitutional by striking down the law that ratified it. This is implicitly based on a constitutional provision which stipulated that the ratification of treaties by Russia should be achieved by adopting a law on ratification. However, this can only be taken advantage of exceptionally, not as a constitutional standard, since it would violate Art.

Such control would constitute a repressive review of the constitutionality of treaties. Hence, instead, the institution with the power to amend the constitution — namely the Kosovo Assembly — would be obliged to bring the constitution into conformance with the treaty concerned.

Oxford Public International Law: International Law and Domestic (Municipal) Law

In this regard, the Constitution of Kosovo, in its Art. Besides, by giving power to the Constitutional Court to review the constitutionality of laws, one may ask what would happen if a law is in harmony with the constitution but in conflict with an international treaty.

In this regard, through Art. As such, one can argue that the lack of jurisdiction to rule on questions of the compatibility of laws with binding treaties leads to the argument that Kosovo's constitutional justice cannot assure the primacy of treaties over laws, nevertheless this duty can still be easily conducted by the ordinary courts. These courts, however, should then apply the treaty and must refuse to apply the inconsistent law; however since the ordinary courts cannot strike down a law, it must be asked who can then strike down a law that conflicts with an international treaty.

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This question finds no answer in the constitutional law of Kosovo. Pacta sunt servanda and good faith in applying treaties under the Constitution of Kosovo: Is it possible to breach an international obligation through undertaking constitutional measures? Arguably, not only the possibility to check the constitutionality of a treaty but also the risk of invalidating a treaty is of crucial importance.

The principle of pacta sunt servanda and the good faith application of international law remain essential features for all present-day constitutions.

The question of whether domestic law allows room for invalidating an international treaty, either constitutional or unconstitutional, remains at the heart of the relationship between treaties and domestic law. The same applies to the Kosovo case. As observed above, the Constitution of Kosovo provides almost no room to contest the constitutionality of treaties, either in a pre-emptive or repressive form.

On the other hand, the question whether the domestic law of Kosovo allows for invalidating a binding international treaty is less problematic.