International Law as Environment for Municipal Litigation : The Chicago Diversion Cases

1968 ◽  
Vol 62 (2) ◽  
pp. 451-454 ◽  
Author(s):  
Don C. Piper
Keyword(s):  
International Law ◽  
Legal Environment ◽  
Legal Rules ◽  
The Third ◽  
Ratio Decidendi ◽  
Municipal Court ◽  
Relationship Of ◽  
Domestic Law

It has long been recognized by students of international law that international legal rules may be significant issues in litigation before a municipal court. Three types of relationship of international law to municipal litigation may be observed: (1) those cases wherein the rules of international law are not germane; (2) those cases wherein the rules of international law, either conventional or customary, are a specific issue before the court and accordingly become part of the ratio decidendi of the court—the Sabbatino case is an example; and (3) those cases wherein international law rules are not a specific issue before the court but are part of the legal environment of the case. In these cases the court relies upon domestic law in its ratio deciderteli, but its cognizance of, or deference to, international law rules may either support or weaken international law. Although this note examines the third type of cases, the categories are not rigidly exclusive.

scholarly journals The Interaction between International and Domestic Legal Orders: Framing the Debate according to the Post-Modern Condition of International Law

2018 ◽  
Vol 19 (1) ◽  
pp. 1-20
Author(s):  
Arthur Roberto Capella Giannattasio
Keyword(s):  
International Law ◽  
Common Law ◽  
A Priori ◽  
A Posteriori ◽  
Legal Analysis ◽  
Critical Approach ◽  
The Third ◽  
International Authority ◽  
Domestic Law ◽  
Modern Condition

The interaction between international and domestic legal systems underwent a deep structural change. By means of a literature review concerned with a critical approach of International Law, this Article presents three perspectives: Modern, Imperial Post-Modern, and Deconstructive Post-Modern. Traditional international law scholarship emphasizes the first and the second trends, while this Article presents the third. While the first frames these interactions on the monism-dualism debate, the second establishes an international law prevailing unconditionally over domestic law, international human rights. The third criticizes whether it is still proper to search for ana priorisolution for this interaction. By rejecting global governance and the truly common law as alternatives to imperial post-modern international law, this Article emphasizes that legal analysis should identify, stimulate and reinforce thea posterioricustomary normative spontaneity of multitude. This Article argues that a serious post-modern international law should be guided by a radical political drive of law, foster a deconstructive interaction of different—spatial, temporal or thematic—representations of law and reject traditional hierarchical solutions and any kind of previous, single and exclusive—national or international—authority between any legal order.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Social Relationships ◽  
Court Decisions ◽  
International Courts ◽  
Customary International Law ◽  
Legal Norms ◽  
State Practice ◽  
Municipal Court ◽  
Domestic Law

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

Dualism

2020 ◽  
pp. 48-79
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
Moral Judgment ◽  
Legal Positivism ◽  
Eu Law ◽  
Rival Theory ◽  
Legal Rules ◽  
Radical Pluralism ◽  
Basic Norm ◽  
Theory Of Law ◽  
Relationship Of ◽  
Domestic Law

This chapter discusses the general relationship of EU law with domestic law. The positivist account of law produces two paradoxical accounts of EU law. The first account is the theory of European ‘monism’, supposing that the EU is the foundation of all law in the member states. The second is ‘radical pluralism’ which says that there are no legal rules applying to the relations between EU law and domestic law. They are both mistaken, because they are both based on a picture of law as a hierarchy or ‘system’ of rules created by a formal doctrine of legal validity. Under the positivist view, inspired by Kelsen and Hart, all legal ‘systems’ must compete for supremacy of their ‘basic norm’ or ‘rule of recognition’. In this sense EU law must compete with domestic law. Legal positivism is false and must be rejected. Dualism, by contrast, relies on the rival theory of law which says that law is a matter of substantive moral judgment. It has no need for a single ‘ultimate’ rule or fact at its foundation. In this analysis, domestic law and international law do not compete because they apply to distinct political questions. The first is an answer to the problems of jurisdiction and the second is the answer to the relations among states. Dualism is the best legal interpretation of the relations between EU law and domestic law.

scholarly journals Money Laundering in Iran’s Law and International Document

2016 ◽  
Vol 9 (5) ◽  
pp. 257 ◽  
Author(s):  
Ghafoor Khoyini ◽  
Hamid Masjed Sarayi ◽  
Soheil Kabiri
Keyword(s):  
Money Laundering ◽  
Transnational Organized Crime ◽  
Legal Principles ◽  
Legal Rules ◽  
Political Economic ◽  
International Conventions ◽  
Relationship Of ◽  
As Relationship ◽  
Domestic Law ◽  
International Document

<p>Money laundering or money laundering is a set of operations which transform the illegitimate and illegal property to legitimate and legal property and This phenomenon is one of transnational organized crime that has detrimental effect and impacts on the local and international level in the fields of social, political, economic and security and for this reason, many international conventions including the Vienna and the Palermo Convention have stressed to criminalize and combat it and in domestic law to combat money laundering as a crime have been considered by the law. In Jurisprudence (figh) there are verses, traditions and legal rules, which demonstrate criminalization of this phenomenon; this paper, in detail discussed this Jurisprudence reasons; as well as relationship of money laundering with Khums(one-fifth) of lawful property mixed with forbidden money and conflict of Criminalization of money laundering with some important Islamic legal principles such as The presumption of ownership and Possession of owner to his property have been pointed and investigated. So this study, analyzed the Jurisprudence foundations of the money laundering case and the prohibition of it has been concluded.</p>

R (Plan B Earth) v. Secretary of State for Transport

2021 ◽  
Vol 193 ◽  
pp. 535-636
Keyword(s):  
Climate Change ◽  
International Law ◽  
National Policy ◽  
Paris Agreement ◽  
Policy Statement ◽  
Content Type ◽  
Secretary Of State ◽  
Municipal Law ◽  
Relationship Of ◽  
Domestic Law

535Relationship of international law and municipal law — Treaties — Treaty not incorporated into municipal law — Whether minister required to take treaty into account — Paris Agreement on Climate Change, 2015 — Decision to designate third runway at Heathrow Airport — Airports National Policy Statement — Planning Act 2008 — Directive 2001/42/EC — Paris Agreement not taken into account — Whether Secretary of State obliged to take Paris Agreement into account — Whether taking Paris Agreement into account would give effect to unincorporated international agreement in domestic lawEnvironment — Treaties — Climate change — Greenhouse gases — Paris Agreement, 2015 — Whether failure to take Paris Agreement into account vitiating decision to designate third runway — Whether Directive 2001/42/EC requiring unincorporated international agreements to be taken into account — The law of England

scholarly journals DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

2011 ◽  
Author(s):  
Justin Leach
Keyword(s):  
International Law ◽  
South African ◽  
Case Law ◽  
Private International Law ◽  
Current Case ◽  
Choice Of Law ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

scholarly journals Terrorist or Armed Opposition Group Fighter? The Experience of UK Courts and the Implications for Public International Law

2018 ◽  
Vol 20 (3-4) ◽  
pp. 281-310 ◽  
Author(s):  
Alexander Murray
Keyword(s):  
International Law ◽  
Public International Law ◽  
The Third ◽  
Military Forces ◽  
Different Types ◽  
Immigration And Asylum ◽  
Opposition Group ◽  
Domestic Law

Abstract The aim of this article is to explore British courts’ jurisprudence relating to the actions of those who have committed acts abroad which, in some circumstances, might be considered terrorism. It does this by identifying three different types of attacks: against civilians, against UN-mandated forces and against another State’s military forces. What emerges from this analysis is that British courts readily classified the first two forms of attack as terrorism while remaining flexible in respect of the third. The article draws on domestic law concerning terrorism and also that which relates to immigration and asylum claims. From this it is apparent the courts have used a complex patchwork of international and domestic law to distinguish between terrorism and ‘legitimate armed attacks’. This is significant because the discussion of the issues by the courts might be of assistance in clarifying and developing the distinction in international law.

International Comity in the Fourth Restatement

2020 ◽  
pp. 319-334
Author(s):  
William S. Dodge
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Minor Role ◽  
Customary International Law ◽  
The Third ◽  
State Practice ◽  
Recognition And Enforcement ◽  
A Minor ◽  
Domestic Law

This chapter reflects on the treatment of international comity in the Third and Fourth Restatements of the Foreign Relations Law of the United States. International comity played a minor role in the Third Restatement, and the distinction between international comity and international law helps to explain why. The Third Restatement recognized comity as the basis for U.S. rules governing the recognition and enforcement of foreign judgments, but generally it attempted to show that rules originating in comity had developed into customary international law. Some of these attempts were criticized as unsupported by state practice and opinio juris. The Fourth Restatement takes a more restrained approach to restating rules of customary international law and correspondingly embraces international comity as a way of distinguishing limits on jurisdiction that are required by international law from limits on jurisdiction that are required only by domestic law. The chapter then considers some of the implications of looking at doctrines of foreign relations law through an international-comity lens.

3. Locating law in the international system

2021 ◽  
pp. 48-68
Author(s):  
Nicole Scicluna
Keyword(s):  
International Law ◽  
International System ◽  
The Body ◽  
Customary International Law ◽  
Legal Rules ◽  
System P ◽  
The Relationship ◽  
Domestic Law ◽  
Domestic Level ◽  
Law Making

This chapter examines the sources of international law. International legal rules are not as easily located as their domestic law counterparts. Whereas at the domestic level, only a relatively small number of bodies are endowed with law-making powers, at the international level, all states have law-making capacity. Moreover, state acts are not the only source of international legal rules. The result is a mosaic of law-making processes, forums, and regimes. The chapter focuses on the two most significant sources of international law: treaties and customary international law. It then turns to the relationship between international law-making and the principle of state sovereignty. Finally, the chapter considers the body of non-binding norms, which increasingly permeates and regulates all facets of international life. This so-called soft law takes many forms; it is often highly influential in its own right and may harden into binding law over time.

Case Studies

2021 ◽  
pp. 167-197
Author(s):  
Margit Cohn
Keyword(s):  
Air Pollution ◽  
International Law ◽  
Case Studies ◽  
Eu Law ◽  
Executive Orders ◽  
Government Action ◽  
Customary International Law ◽  
Legal Rules ◽  
National Emergency ◽  
Domestic Law

The chapter offers general introductions to the legal ordering of two fields—national emergency and air pollution. In addition to providing general backgrounds for those analyses, the introductions present initial accounts on the complexity of both bodies of law in two legal systems, thereby offering four glimpses of the ways fuzziness can, and does, develop and flourish in law. These overviews may also be useful to those who study these fields. Commentaries on specified areas of law often tend to direct their attention to a small number of measures—those that could be considered the ‘legislative mandates’ under the ideal-type vision of regulation—but, true to one of the themes of this book, attention should also be cast elsewhere. The overviews presented here span the legal rules directly targeting the regulation of these two fields of government action, originating from customary international law; international law treaties and documents; EU law, as long as applicable; domestic law; and unilateral measures such as orders in council and executive orders.

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