International Law and Domestic Legal Systems

What does the monist view suggest?

The monist view suggests that both international and municipal law form part of one single legal order

From where does Kelsen suggest that all domestic legal systems derive their validity from?

All domestic legal systems derive their validity from a basic rule (Grundnorm) of international law which endorses the existence of States as independent units.

What does the dualist view assume?

The dualist view assumes that international law and municipal law are two separate legal systems which exist independently of each other, each with its own lawmaking authority.

The origin of the dualist theory can be traced to:

Heirich Triepel

Art 27 VCLT

“[a] party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty”

What case demonstrates that in an international dispute, internal law will be viewed as facts rather than law

PCIJ, Certain German Interests in Upper Polish Silesia

How can the age old doctrinal controversy between monism and dualism be settled?

By the observation that, as a matter of social fact, the absolute majority of national legal systems regard themselves and operate as separate from international law.

How is there merit in the monist theory?

Insofar as it conceptually helps to qualify the degree of dualism adopted in any given national jurisdiction.

How do common law jurisdictions use international law?

incorporation of customs and transformation of treaties

How do civil law jurisdictions interact with international law?

reception on the basis of Constitutional provisions

In English law, how are customs applicable?

Customs are directly applicable and effective - any change in international customary law would automatically imply the same change in English law

How has incorporation of custom in English and Scots law been “sensibly tempered”?

International customary rules are automatically incorporated only insofar as they are not incompatible with domestic statutory legislation

“A peculiar statutory means of incorporation of international custom into the US system through the judiciary”

1789 Alien Tort Claims Act

An example of where the US court exercised jurisdiction in a tort claim between two Paraguayan nationals

Filartiga v Pena-Irala (1980)

Transformation

Transformation refers to how rules of written international law enter common law legal system → namely through an act of parliament

US case which us d the presumption of compatibility?

Murray v The Charming Betsey (1804)

Article 10(1) of the Italian Constitution

'the Italian legal system conforms to the generally recognised rules of international law'.

Jurisprudential Nationalism

This concept describes the phenomenon where states — through their courts, constitutions, or political practice — assert the primacy of domestic law over international obligations

What case ““started a particularly harsh arm-twisting between the US judiciary and the ICJ”

Breard v Greene

How does the Ministerial Code 2010 vs 2016 reposition the UKs relationship with international law?

The words “"including international law and treaty obligations" were quietly removed under the Cameron/post-Cameron government. No statute was passed, no debate was held — a soft-law document was simply redrafted.

2020 amendmental of Russian constitution

approved by referendum, inserted a direct mechanism for nullifying international ruling

In the jurisdictional immunities case, why did Germany institute proceedings against Italy?

Italian Court of Cassation ordered Germany to pay compensation towards Italian and Greek victims of the nazis crimes during WW2. Germany invoked a breach of the custom on State immunity

What did the ICJ order Italy to do?

To ensure that the decisions of its courts infringing upon the immunity of Germany would cease to have effect

Did Italy comply with the ICJ’s order?

Italy passed a law in 2013 to comply with the ICJ ruling → But then the 2013 Italian law to that effect was declared constitutionally unlawful by the Constitutional court

Why did the Constitutional court deem the 2013 law unlawful?

Due to counter-limits. Article 2 of the Italian Constitution guarantees inviolable human rights, one of which is access to justice.

Denying Italian victims any judicial orum to seek compensation for grave crimes violated that inviolable right.

The constitutional court reasoned that the customary international law rule on state immunity, as interpreted by the ICJ, could not be incorporated into Italian law to the extent that it conflicted with these supreme principles

Germany argued that decision 238/2014 was:

“adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations”