scholarly journals DOMESTIC LAW AND INTERNATIONAL LAW IN BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 197-222
Author(s):  
Ana Cristina Paulo Pereira ◽  
Eraldo Silva Júnior
Keyword(s):  
International Law ◽  
Know How ◽  
Legal Effect ◽  
Critical Issues ◽  
International Obligations ◽  
Theoretical Question ◽  
International Conventions ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

International law, which main sources are agreements and international conventions, is increasingly present in internal affairs in such way that it is difficult to imagine an area of national law which has not been affected in some way by standards imposed by agreements. But how and to what extent international law will be applied internally will depend on the way in which States comply with their international obligations. Therefore, it is essential to know how States bestow domestic legal effect to their agreements. The theoretical question about the relationship between domestic law and international law is usually presented on the basis of dualistic (or pluralistic) and monistic theories, that can not, however, comprehensively cover all aspects of this relationship. The Constitution of the Federative Republic of Brazil recognizes, yet indirectly, international agreements as part of domestic law, but left important aspects related to its application without answers. Thus, the Brazilian judiciary has faced critical issues relating to the impact of agreements in domestic law, particularly regarding its duration, effects and hierarchical position. Despite the Brazilian judicial performance, legal uncertainties regarding the matter persist, which will be exposed in this article.

scholarly journals DOMESTIC LAW AND INTERNATIONAL LAW IN BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 197-222
Author(s):  
Ana Cristina Paulo Pereira ◽  
Eraldo Silva Júnior
Keyword(s):  
International Law ◽  
Know How ◽  
Legal Effect ◽  
Critical Issues ◽  
International Obligations ◽  
Theoretical Question ◽  
International Conventions ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

International law, which main sources are agreements and international conventions, is increasingly present in internal affairs in such way that it is difficult to imagine an area of national law which has not been affected in some way by standards imposed by agreements. But how and to what extent international law will be applied internally will depend on the way in which States comply with their international obligations. Therefore, it is essential to know how States bestow domestic legal effect to their agreements. The theoretical question about the relationship between domestic law and international law is usually presented on the basis of dualistic (or pluralistic) and monistic theories, that can not, however, comprehensively cover all aspects of this relationship. The Constitution of the Federative Republic of Brazil recognizes, yet indirectly, international agreements as part of domestic law, but left important aspects related to its application without answers. Thus, the Brazilian judiciary has faced critical issues relating to the impact of agreements in domestic law, particularly regarding its duration, effects and hierarchical position. Despite the Brazilian judicial performance, legal uncertainties regarding the matter persist, which will be exposed in this article.

scholarly journals DOMESTIC LAW AND INTERNATIONAL LAW IN BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 197-222
Author(s):  
Ana Cristina Paulo Pereira ◽  
Eraldo Silva Júnior
Keyword(s):  
International Law ◽  
Know How ◽  
Legal Effect ◽  
Critical Issues ◽  
International Obligations ◽  
Theoretical Question ◽  
International Conventions ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

International law, which main sources are agreements and international conventions, is increasingly present in internal affairs in such way that it is difficult to imagine an area of national law which has not been affected in some way by standards imposed by agreements. But how and to what extent international law will be applied internally will depend on the way in which States comply with their international obligations. Therefore, it is essential to know how States bestow domestic legal effect to their agreements. The theoretical question about the relationship between domestic law and international law is usually presented on the basis of dualistic (or pluralistic) and monistic theories, that can not, however, comprehensively cover all aspects of this relationship. The Constitution of the Federative Republic of Brazil recognizes, yet indirectly, international agreements as part of domestic law, but left important aspects related to its application without answers. Thus, the Brazilian judiciary has faced critical issues relating to the impact of agreements in domestic law, particularly regarding its duration, effects and hierarchical position. Despite the Brazilian judicial performance, legal uncertainties regarding the matter persist, which will be exposed in this article.

scholarly journals DOMESTIC LAW AND INTERNATIONAL LAW IN BRAZIL

2017 ◽  
Vol 4 (5-6) ◽  
pp. 197-222
Author(s):  
Ana Cristina Paulo Pereira ◽  
Eraldo Silva Júnior
Keyword(s):  
International Law ◽  
Know How ◽  
Legal Effect ◽  
Critical Issues ◽  
International Obligations ◽  
Theoretical Question ◽  
International Conventions ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

International law, which main sources are agreements and international conventions, is increasingly present in internal affairs in such way that it is difficult to imagine an area of national law which has not been affected in some way by standards imposed by agreements. But how and to what extent international law will be applied internally will depend on the way in which States comply with their international obligations. Therefore, it is essential to know how States bestow domestic legal effect to their agreements. The theoretical question about the relationship between domestic law and international law is usually presented on the basis of dualistic (or pluralistic) and monistic theories, that can not, however, comprehensively cover all aspects of this relationship. The Constitution of the Federative Republic of Brazil recognizes, yet indirectly, international agreements as part of domestic law, but left important aspects related to its application without answers. Thus, the Brazilian judiciary has faced critical issues relating to the impact of agreements in domestic law, particularly regarding its duration, effects and hierarchical position. Despite the Brazilian judicial performance, legal uncertainties regarding the matter persist, which will be exposed in this article.

scholarly journals Correlation of International and Domestic Law: Procedural and Legal Problems

2021 ◽  
Vol 3 (3) ◽  
pp. 189-205
Author(s):  
Alexandr D. Magdenko ◽  
◽  
Alexandr Yu. Tomilov
Keyword(s):  
Public Relations ◽  
International Law ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Legal Systems ◽  
Public And Private ◽  
Main Research ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.

A Hesitant Embrace: The Application of International Law by Canadian Courts

2003 ◽  
Vol 40 ◽  
pp. 3-60 ◽  
Author(s):  
Jutta Brunnée ◽  
Stephen J. Toope
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
Legal Effect ◽  
Potential Impact ◽  
Treat All ◽  
The Relationship ◽  
Domestic Law ◽  
Over Time ◽  
Do So

SummaryCanadian courts are approaching the task of mediating the relationship between international law and domestic law with newfound energy. Yet, for all their declared openness to international law, courts are still inclined to avoid deciding cases on the basis of international law. This does not mean that international law is given no effect or that its broad relevance is denied. The avoidance strategy is more subtle: even when they invoke or refer to international law, Canadian courts generally do not give international norms concrete legal effect in individual cases. Although international law is brought to bear on a growing range of questions, its potential impact is tempered — and we fear largely eviscerated — because it is merely one factor in the application and interpretation of domestic law. Within the Canadian legal order the question of “bindingness” of international law is closely intertwined with the manner in which it comes to influence the interpretation of domestic law. In the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms, as far as this is possible. By contrast, norms that do not bind Canada internationally (for example, soft law or provisions of treaties not ratified by Canada) can help inform the interpretation of domestic law and, depending on the norm in question and the case at issue, may even be persuasive. Courts may, and in some cases should, draw upon such norms for interpretative purposes, but they are not strictly speaking required to do so. However, especially following the Supreme Court’s decision inBaker, there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner — as relevant and perhaps persuasive, but not as determinative, dare we say obligatory. Our concern is that if international law is merely persuasive, it becomes purely optional, and can be ignored at the discretion of the judge. We argue that it is not enough to treat all normative threads in this fashion — over time this approach risks weakening the fabric of the law.

Domestic Anti-Avoidance Legislation in Relation to Tax Treaty Law

2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani
Keyword(s):  
International Law ◽  
Tax Avoidance ◽  
International Taxation ◽  
Main Principle ◽  
Legal Practice ◽  
Tax Treaties ◽  
International Tax ◽  
Tax Payers ◽  
The Relationship ◽  
Domestic Law

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.

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.

scholarly journals The (Immediate) Post-World War II Period

2020 ◽  
pp. 168-189
Author(s):  
Antonello Tancredi
Keyword(s):  
World War Ii ◽  
International Law ◽  
Interwar Period ◽  
World War ◽  
Post World War Ii ◽  
Theoretical Approaches ◽  
The Social ◽  
International Legal Order ◽  
The Relationship ◽  
Domestic Law

This chapter addresses the development, after World War II, of two different currents of thought inherited by the Italian international law doctrine from the interwar period: dogmatism and structuralism. The analysis of some fundamental writings concerning topics such as the foundation and the social structure of the international legal order tries to offer a reading lens on some of the most important scientific trends (especially ‘realism’ and ‘neo-normativism’) of the post-World War II period and on the scholars that animated such approaches. Thanks to the identification of some structuring ideas, it will then be possible to briefly examine other issues concerning, for instance, the relationship between international and domestic law after the 1948 Republican Constitution, sovereignty, etc. The evolution of the methodology of international law will have a relevant part in the analysis of theoretical approaches developed by Italian scholars in this period.

Legal Protection of Children in Non-International Armed Conflicts in Nigeria

2021 ◽  
pp. 1-27
Author(s):  
Olaitan Oluwaseyi Olusegun
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Legal Protection ◽  
Legal Framework ◽  
Armed Conflicts ◽  
Conflict Situations ◽  
Legal Frameworks ◽  
The Impact ◽  
Domestic Law

Abstract Armed conflicts are characterised by violence and human rights violations with various implications on the citizens, economy and development of nations. The impact is however more pronounced with life-long consequences on children, the most vulnerable members of the society. This article examines the impact of non-international armed conflicts on children in Nigeria and identifies the laws for the protection of children against armed conflicts, both in international law and Nigeria’s domestic law. It also addresses the challenges involved in the protection of children in armed conflict situations in Nigeria. The study found that legal efforts to protect children have not been given sufficient attention in Nigeria. This is mostly due to various challenges including the fragmentation of legal framework and the refusal to domesticate relevant treaties. It is thus recommended that these challenges be addressed through the implementation of effective legal frameworks.

International Law Concentrate

2021 ◽  
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
International System ◽  
Comprehensive Overview ◽  
Essential Information ◽  
Peaceful Settlement ◽  
Questions And Answers ◽  
The Law ◽  
Settlement Of Disputes ◽  
The Relationship ◽  
Domestic Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. International Law Concentrate provides a comprehensive overview of international law and includes key information, key cases, revision tips, and exam questions and answers. Topics covered include the nature of international law and the international system, sources of international law, and the law of treaties. The book also looks at the relationship between international and domestic law. It considers personality, statehood, and recognition, as well as sovereignty, jurisdiction, immunity, and the law of the sea. The book describes state responsibility and looks at peaceful settlement of disputes. Finally, it looks at the use of force and human rights.

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