13. The Relationship between International and National Law

2018 ◽  
Author(s):  
Eileen Denza
Keyword(s):  
International Law ◽  
Professional Training ◽  
National Parliaments ◽  
International Courts ◽  
National Courts ◽  
The Relationship

This chapter examines the relationship between international and national law. It discusses the approach of international courts and tribunals; the approach of national parliaments and national courts; and some problems that arise in national courts. While prospects for a harmonized approach to the relationship between international and national law are dim, conflict can be avoided through the close involvement of international lawyers in the treaty-making and ratification process; attention at the time of ratification to implementation questions; the teaching of international law as part of the professional training of judges; and expert assistance to national courts when international law questions arise.

Legitimacy

2019 ◽  
Keyword(s):  
International Law ◽  
The State ◽  
State Sovereignty ◽  
International Courts ◽  
The Rule Of Law ◽  
State Legitimacy ◽  
The Relationship ◽  
Supranational Institutions

This collection brings together scholars of jurisprudence and political theory to probe the question of ‘legitimacy’. It offers discussions that interrogate the nature of legitimacy, how legitimacy is intertwined with notions of statehood, and how legitimacy reaches beyond the state into supranational institutions and international law. Chapter I considers benefit-based, merit-based, and will-based theories of state legitimacy. Chapter II examines the relationship between expertise and legitimate political authority. Chapter III attempts to make sense of John Rawls’s account of legitimacy in his later work. Chapter IV observes that state sovereignty persists, since no alternative is available, and that the success of the assortment of international organizations that challenge state sovereignty depends on their ability to attract loyalty. Chapter V argues that, to be complete, an account of a state’s legitimacy must evaluate not only its powers and its institutions, but also its officials. Chapter VI covers the rule of law and state legitimacy. Chapter VII considers the legitimation of the nation state in a post-national world. Chapter VIII contends that legitimacy beyond the state should be understood as a subject-conferred attribute of specific norms that generates no more than a duty to respect those norms. Chapter IX is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. Chapter X examines Joseph Raz’s perfectionist liberalism. Chapter XI attempts to bring some order to debates about the legitimacy of international courts.

scholarly journals Causal Inference, International Law, And Maritime Disputes

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 389-393
Author(s):  
Benjamin J. Appel
Keyword(s):  
Causal Inference ◽  
International Law ◽  
Law Of The Sea ◽  
International Courts ◽  
Legal Scholarship ◽  
Wide Range ◽  
Maritime Disputes ◽  
Empirical Tests ◽  
The Impact ◽  
The Relationship

Sara Mitchell and Andrew Owsiak's examination of the impact of UN Convention on the Law of the Sea (UNCLOS) and Article 287 declarations on the peaceful resolution of maritime disputes significantly advances the literature on the relationship between international law/international courts and maritime issues. To their credit, the authors employ a wide range of empirical tests in the article to provide readers with confidence in the empirical results. Nonetheless, there are some important limitations in their approach. Drawing on insights from the causal inference literature, I argue that Mitchell and Owsiak's empirical analyses suffer from two biases that both (1) raise concerns about the causal relationships identified in the article, and (2) suggest some important scope conditions in its empirical findings. I investigate the biases and propose suggestions for legal scholarship to produce more credible results.

Domestic courts, transnational law, and international order

2020 ◽  
Vol 26 (1_suppl) ◽  
pp. 184-208 ◽  
Author(s):  
Filiz Kahraman ◽  
Nikhil Kalyanpur ◽  
Abraham L. Newman
Keyword(s):  
International Law ◽  
International Order ◽  
International Diffusion ◽  
Conflict And Cooperation ◽  
Transnational Law ◽  
National Courts ◽  
Political Opportunities ◽  
Domestic Courts ◽  
The Relationship

This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.

THE THEORY AND PRACTICE OF ‘SUPRA-CONSTITUTIONAL’ LIMITS ON CONSTITUTIONAL AMENDMENTS

2013 ◽  
Vol 62 (3) ◽  
pp. 557-597 ◽  
Author(s):  
Yaniv Roznai
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Legal Order ◽  
Theory And Practice ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
National Courts ◽  
Constitutional System ◽  
The Relationship

AbstractThis article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

scholarly journals The relationship between public international law and petroleum law: Study of the case between Timor-Leste and Australia

2019 ◽  
pp. 31-51
Author(s):  
Jeremias Pereira ◽  
Lívia Haygert Pithan
Keyword(s):  
International Law ◽  
National Parliaments ◽  
Public International Law ◽  
Oil Companies ◽  
Timor Leste ◽  
Oil And Natural Gas ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Maritime Territory

This article aims to analyze the Law of the Sea and Petroleum to understand the reasons that generated, for more than a decade, the conflict between Timor-Leste and Australia regarding the definition of definitive maritime borders. Timor-Leste has already been exploited and invaded by several nations. Because of the abundance of oil and natural gas, it suffered to gain independence in 2002, as well as struggled to enjoy its maritime territory until 2018, from this new context of the maritime border treaty signed between Timor-Leste and the Australia. The median equidistance line was the parameter used to define the definitive Timorese borders, granting the right to enjoy their maritime territory. The definitive pact on borders has contributed greatly to the development of Timor-Leste, due to the exploitation of sea riches, in addition to recognizing the country’s need for oil companies to assist in the evolution of Timor-Leste in a specific and punctual way. This now needs to be ratified by the national parliaments of both countries. The ratification process is due to be completed in 2019. Timor-Leste is currently seeking to negotiate its maritime borders with Indonesia, but these have been suspended during the mandatory conciliation process with Australia. Now that this process is over, the two countries can resume their discussions aga

Introduction

2021 ◽  
pp. 1-14
Author(s):  
Catharine Titi
Keyword(s):  
International Law ◽  
International Courts ◽  
Law And Justice ◽  
The Relationship

The book’s first chapter introduces the concept of equity in international law, with an emphasis on the various attempts that have been made to define it and its significance for contemporary international law. It gives an overview of one of the most controverted discussions about equity, and one that remains at the heart of the book, concerning the relationship between equity, law, and justice. This introductory chapter further presents the book’s overall purpose and main arguments; it explains the coverage of international courts and tribunals and of specialised fields of international law, and it outlines the book’s structure and chapters.

Direct Effects and Indirect Effects of Union Law

2018 ◽  
Author(s):  
Robert Schütze
Keyword(s):  
Member State ◽  
International Law ◽  
Indirect Effects ◽  
Direct Contact ◽  
Legal Order ◽  
European Law ◽  
National Courts ◽  
The Law ◽  
The Relationship ◽  
Domestic Law

Classic international law holds that each state can choose the relationship between its ‘domestic’ law and ‘international’ law. Two—constitutional—theories thereby exist: monism and dualism. Monist states make international law part of their domestic legal order. International law will here directly apply as if it was domestic law. By contrast, dualist states consider international law separate from domestic law: international law is viewed as the law between states; national law is the law within a state. International law needs to be ‘transposed’ or ‘incorporated’ into domestic law; and it can therefore only have indirect effects through the medium of national law. For dualist states, all European law would need to be ‘incorporated’ into national law before it could have domestic effects. Individuals would here never come into direct contact with European law; and where a Member State violated European law, individuals could not invoke ‘their’ European rights in the national courts.

Eternity in a Global Context

2021 ◽  
pp. 169-203
Author(s):  
Silvia Suteu
Keyword(s):  
International Law ◽  
Constitutional Amendment ◽  
Regional Organizations ◽  
International Courts ◽  
Global Context ◽  
National Courts ◽  
Transnational Engagement ◽  
The Impact ◽  
Global Values ◽  
Constitution Making

This chapter analyses eternity clauses in a transnational context, as part of the story of the internationalized nature of constitution-making processes and the growing diffusion of global values in democratic constitutionalism. It explains this diffusion along two axes: the internationalization of constitutional authorship and the rise of international and regional organizations as constitutional norm entrepreneurs. The chapter also describes the adjudication of unamendability as transnationally embedded, which takes the form of national courts that rely on international law or a transnational referent when developing unconstitutional constitutional amendment doctrines. It also explores the possibility of international courts developing supranational forms of unconstitutional constitutional amendment doctrines. This chapter raises awareness about the impact of the transnational on the content and authorship of eternity clauses, but also cautions against assuming positive transnational engagement in the adjudication of unamendability. The chapter highlights the mounting backlash against universalistic values and international law as anchors to ground and orient unconstitutional constitutional amendment doctrines.

Jurisdictional Immunities of States and International Organizations

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
International Organizations ◽  
International Courts ◽  
National Courts ◽  
State Immunity ◽  
International Legal Order ◽  
The Law ◽  
Diplomatic Immunity ◽  
Heads Of State ◽  
The Relationship ◽  
Conceptual Confusion

This book covers the relationship between the jurisdictional immunities of States and international organizations, addressing their similarities and dissimilarities. Their relationship with diplomatic immunity is also examined. It considers that the immunity of international organizations was historically conceived in terms of diplomatic immunity and State immunity. The major aim of this book is to clarify the conceptual confusion that has often bedeviled the understanding of the law of the (different but interrelated) jurisdictional immunities of both States and international organizations. The approach is to holistically analyze and synthesize select and relevant opinions of international courts and national courts. To achieve this, the book focuses more on what the law is than on what it should be. An understanding of the law is more useful to a practitioner than a criticism of it. The book is not an exegesis on everything immunity. The distinct jurisdictional immunities of heads of State and of diplomats are beyond the scope of this book, and are only tangentially examined. The book concludes by making the case that the jurisdictional immunities of States and international organizations are not only sustainable but also necessary for the international legal order to foster international relations and cooperation. The author intends to position the book to be of use both to scholars and to practicing lawyers and legal advisers in government and international organizations, as well as to lawyers whose practice concerns issues and laws of privileges and immunities.

Part VIII International Institutional Law, Ch.46 Legal Capacity and Powers

2016 ◽  
Author(s):  
Sarooshi Dan
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Capacity ◽  
International Courts ◽  
Legal Personality ◽  
Domestic Courts ◽  
The Law ◽  
National Governments ◽  
The Relationship

The law of international organizations (IOs) is undergoing profound changes, due in large part to the increasingly important role that these organizations have played in exercising powers conferred on them by national governments. This phenomenon has led to concerted attempts by states, international courts and tribunals, and domestic courts to ensure accountability for these exercises of power by imposing corresponding limits on IOs. This chapter focuses, first, on the development of international law relating to the legal personality of IOs, including in this context a brief consideration of the issue of immunity. It then discusses the relationship between states and IOs and the implications of this relationship for the responsibility of states, and in some cases the responsibility of IOs.

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