THE DISSOLUTION OF DUALISM

The article is devoted to one of the aspects of the problem of correlation between international and domestic law, namely the relationship between international and national law. This relationship is developing dynamically. The development of the interconnectedness of international and domestic law occurs in connection with the constant increase in the number of international treaties and national legal acts aimed at regulating social and domestic relations, which is the object of international cooperation. At present, trends in the further development of international law and its interaction with national legal systems have begun to emerge clearly. The process of globalization has strengthened the interconnection of states, expanded the range of intrastate social relations that are a common object of regulation of two legal systems - the international legal system and the domestic legal system. Based on the analysis of the provisions of the general theory of law and the doctrine of international law and international normative acts, the theoretical and legal problems of the relationship between domestic and international law are considered. It explores the social and legal nature of the relationship between the two legal systems and explores the importance of harmonizing domestic state law with international law. It is noted that although international law and domestic law have a single social nature, they functionally act as two relatively independent and closely interacting and interdependent systems of law. The nature of their interrelations, methods and forms of interaction, as well as their functional connection, interdependence and the role of the state in this process are revealed. It is emphasized that the relationship and interaction are not limited only to the norms of the two legal systems, but cover the two legal systems as a whole. Consequently, there must be harmonization of the norms of national law with all sources of international law, including with the individual international obligations of states. The article notes that the state is a participant in the creation of legal norms of both domestic and international law. The process of coordinating the will or position of states when concluding international treaties is regulated by the norms of international law, and the process and procedure for expressing these declarations of will or positions are determined by the norms of national law. At the same time, international law does not belong to the legal system of specific states, although in fact it is part of all legal systems. If the object of regulation coincides, the norms of international law always take precedence over domestic ones. According to the author of the article, the concept of a legal conflict should not be identified with the invalidity of international treaties. It is argued that the case of conflict occurs only with a valid contract. It is also emphasized that many norms, enshrined in international law by treaty or customary means, acquire the character of jus cogens and therefore are binding on all states, regardless of ratification or accession to certain treaties or agreements. The article points out that international law imposes an obligation on the state as a whole, but it is domestic law that determines state bodies and officials who are responsible for fulfilling the international obligations of the state.
 The purpose of the article is to theoretically clarify the essence of the relationship and interaction between international and domestic law, to identify the importance of harmonizing domestic legislation with international law and the grounds for the priority of international norms over national law.

Domestic criminal law informs the register of international criminal law, whether formally through the development of general principles of law or informally through experience and analogy. Reciprocally, international criminal law also informs the register of domestic criminal law, whether formally through incorporation of treaty and custom or, once again, informally through experience and analogy. Circulation thereby arises within the curricular sphere of penal responsibility. Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to municipal legal practice, might international criminal law cast a somewhat longer shadow, travel a bit farther, or leave a somewhat haler legacy? This paper considers such extracurricular effects, and related trans-judicial dialogue, by unpacking the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations (a phrase taken to mean customary international law). This project organizes itself around a survey of US federal court citations to the case-law and materials of the International Criminal Tribunal for Rwanda (ICTR). This survey quickly demonstrates that US judges who cite to ICTR work product to determine the rule of application in an ATS dispute also frequently cite to the case-law and materials of other institutions, notably the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Court (ICC), the International Military Tribunal at Nuremberg (IMT), and the American Military Tribunal at Nuremberg (AMT). Hence, this Article references these cases and materials as well. While diverse, citations to international cases and materials in ATS adjudication tend to cluster around three substantive areas: (1) aiding and abetting as a mode of liability; (2) the definition and substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. In light of the sharply limited capacity of international criminal courts and tribunals, domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of US courts of general jurisdiction as ‘receivers’ of international criminal law reveal broader patterns of transnational legal migration and a largely unanticipated legacy of international criminal courts and tribunals. Distortions may nonetheless arise when international norms migrate into legal practices at the national level, in particular, when they do so in cognate legal regimes. These migrations constitute national practices indicative of “comparative international law,” namely, that international legal norms may take shape differently among, and within, various national jurisdictions. While international criminal lawyers may welcome the broad diffusion of international norms, including extracurricularly from the criminal to civil context in a rich array of venues, concerns emerge should the content of the norms fragment and, thereby, weaken international law’s purported universality. The US experience is thereby instructive in terms of striking the appropriate relationship between national courts and international law. Should national courts serve as dispassionate law enforcers, as translators of law, or engaged law creators? Should international judges be mindful of the at times unforeseen afterlife of the jurisprudence they create? Obversely, the US experience also raises questions as to whether the specialized, and at times inconsistent, work-product of the international criminal courts and tribunals is even suitable for broader dissemination and incorporation at the national level.

This article analyses how domestic constitutional law in many countries responds to the increasing intrusiveness and regulatory claims of international law, notably by refusing to accept an unconditional supremacy of international law above domestic constitutional principles. The method is empirical without claiming to offer a systematic account of all 192 or so constitutions of the world. Moreover, the special problem of constitutional adaptation of EU member states to EU law is left aside. The article does not bother with the specific domestic techniques of incorporating of international law into domestic legal orders, be they called adoption or transformation. While the paper avoids labels such as monism and dualism and seeks to overcome them, it can hardly be denied that the concept of pluralism diagnosed and appraised in the conclusions is 'dualist' to the extent that it presupposes the existence of multiple legal orders. The paper is structured as follows: Part A shows that state constitutons increasingly refer to international law and offers some explanations for this trend. Part B demonstrates how international and domestic constitutional law are more and more converging, which also implies that the diverse state constitutions share more and more commonalities. Part C deals with the spreading practice of constitutional interpretation in conformity with international law. Part D argues that in some constitutional orders, international human rights norms assume a para-constitutional function by serving as a standad for judicial review even where constitutional review is not allowed. Part E analyses the supremacy of international law. While the international courts and tribunals claim supremacy over all domestic law, including constitutional law, this claim is rejected by more and more domestic actors. At the same time, more and more domestic courts claim the competence to scrutinize whether international rules and court decisions are in conformity with the domestic constitution. The survey of constitutional provisions and case law reveals that although domestic constitutions have, especially in the recent decades, been intensely

As globalization ushers in a new age, the interaction between local and international law has reached a high point. As a result, in order to successfully fulfill the international community's expectations for legal coordination, interactive proposals based on the governance concept of defending the rule of law as the soul must be issued. In line with the natural logic of mixing soft and hard law in globalization, a theoretical analytical framework for the interaction growth of international and domestic law is constructed based on the dynamic evolution of international politics. From the standpoint of theoretical boundary changes and practical deduction of interactive development, this framework can explain the development mechanism jointly generated by the “interaction” mechanism and the “governance” cycle mechanism, which involve the participation of international and domestic law. It may also continue to investigate the possibilities of advancing toward the aim of high-quality development of the rule of law system. The purpose of the interaction development of domestic and international law is to increase the satisfaction of international collaboration, to continually enhance the quality of the rule of law system, and to establish a legal framework that meets global governance requirements. To achieve high-quality development of the interaction between international law and domestic law, promote the improvement of the global governance system, and truly meet the needs of the international community, steps like strengthening legal control based on the internal circulation of international law quality, building mechanisms for interaction and adaptation between international law and domestic law quality perception, and establishing an evaluation system.

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

The birth of international law falls behind domestic law, therefore as a developing legal system, international law is naturally influenced by the more mature domestic law system, both in terms of domestic public law and domestic private law. Modern international law is essentially international law with a sense of domestic private law, but the increasingly frequent and complex international interactions required the establishment of a hierarchical and centralized structure shown in domestic public law. The development of international law by drawing on domestic public law faces certain obstacles and poses risks that should be given due attention. This study starts with the theoretical foundation of domestic law influencing international law, in both private and public sense, followed by analyses of real-world practice, and concluded with the major issues such as the different interpretations of equality in domestic and international laws. This article concludes that international law was first developed based on domestic private law with a focus on equality, and then shifted towards domestic public law by emphasizing hierarchy and centralization. International constitutionalism is also discussed in this study using some judgements made by the International Court of Justice.

The article discusses the content and role of constitutional legal regulation of the ratio of domestic and international law in Kazakhstan and foreign countries. The authors show the domestic and foreign specifics of the constitutional regulation of the correlation of national and international law, different approaches of legislators to fixing the correlation of domestic and international law in the Basic Laws are indicated. The article also addresses the problems of interaction between international and constitutional law. The authors highlight theoretical and practical issues related to the incorporation of international law into the legal systems of states by the Constitutions of foreign countries and the Republic of Kazakhstan. Based on the comparative legal analysis, the features of fixing the correlation of domestic and international law in the constitutions of foreign countries are revealed. The issues of fixing the norms of general international law and international treaties in the Constitutions of various countries are also considered. Conclusions have been made, in particular, that the Constitution of the Republic of Kazakhstan as a whole is in line with global trends in the development of constitutional law, due to universal globalization and internationalization of law; about the need for further scientific development of theoretical and practical issues relating, for example, to the conceptand content of universally recognized principles and norms of international law, their place in the hierarchy of legal systems of states. As one of the directions for further improvement of constitutional legislation, a proposal has been formulated to include in the constitutional and legal law provisions on universally recognized principles and norms of international law on human rights.

Economic Sanctions Against Human Rights Violations

The chapter addresses two issues that have been largely left outside the conversation about the interaction between domestic courts and international humanitarian law (IHL): the fusion of domestic and international law, and the role of (or lack of) expertise vis-à-vis the application of IHL by domestic courts. It identifies three types of domestic court decisions that fuse international and domestic law. The first is the application of international law as part of domestic law. The second is the direct application of domestic law doctrines to questions of international law. The third is when the legality under international law is dependent on an adequate regulation under domestic law. As to expertise, the chapter provides a thorough examination of domestic courts’ IHL expertise, and examines three techniques that they use to mitigate their insufficient expertise. Finally, it addresses the implications of the discussion on domestic courts role in the development of IHL.

Метою цієї статті є вивчення теоретичних підходів до визначення правового статусу норм міжнародного права у правовій системі України.
 Наукова новизна полягає у системному дослідженні питань взаємодії міжнародного та внутрішньодержавного права, імплементації міжнародно-правових норм в Україні з огляду на посилення договірних засад сучасного міжнародного правопорядку, активізацію діяльності держав-членів міжнародного співтовариства щодо виконання своїх міжнародно-правових зобов’язань, а також виходячи з формування та прояву нової форми глобалізації – правової.
 Висновки.
 - гармонічно узгоджені нормативні приписи обох юридичних систем – міжнародного та внутрішнього права, є гарантією сумлінного дотримання державами своїх міжнародних зобов’язань. Феноменологія самого узгодження сприяє позитивному розвитку і вдосконаленню самих правових систем;
 - міжнародне право об’єктивно не змогло б здійснювати свою регулятивну функцію без наявності норм внутрішнього права, що фактично продовжують і втілюють його нормативні настанови в національному правовому просторі. Держава за допомогою ВП створює (повинна створювати) необхідні правові умови для забезпечення виконання міжнародних договорів;
 - взаємодія норм МП і ВП охоплює важливі конституційно-правові, інституційно-структурні і нормативно-технологічні аспекти існування норм МП в національній правовій системі, а саме: а) проголошення та законодавче закріплення принципу безумовного дотримання міжнародних договорів; б) правове супроводження і забезпечення виконання міжнародних договорів, включно з державною санкцією за невиконання договорів і невнесення до ВП змін та доповнень, необхідних для виконання зобов’язань за договорами;
 - міжнародному публічному праву для його існування та виконання своїх функцій необхідне ВП і його організаційні і нормативно-технологічні механізми здійснення нормативних приписів; водночас і ВП необхідне МП, яке встановлює нормативну основу для узгоджених дій різних держав у різних сферах, у тому числі для вирішення можливих колізій і суперечностей між правовими системами держав-членів міжнародного співтовариства, а також для зовнішньополітичної діяльності держав.

Whence does international law derive its normative force as law in a world that remains, in many respects, one where legitimate politics is practiced primarily at the national level? As with domestically focused legal theories, one standard answer is positivistic: the law's authority is based on its origin in agreed procedures of consent. This is certainly plausible with respect to treaty obligations and commitments that derive from the United Nations Charter, but it leaves customary international law vulnerable to legitimacy critiques—of which there is no shortage among international law skeptics. Even with respect to conventional international norms, such as treaty provisions, there is often a sense that such consent is democratically thinner than the public consent to domestic law, particularly fundamental domestic law, constitutional norms, and derivative principles of legitimate governance. State consent in international law, in this view, is often a very imperfect proxy for democratic consent to international legal norms. While it is obvious to international lawyers why (as a matter of positive law doctrine) state consent should make international norms prevail over domestic norms to which there is arguably deeper democratic consent, persistent critics of international law have questioned whether this should be so as a matter of legitimacy.

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Extradition law is an amalgamation of international and domestic law with an obligation on states to extradite due to treaty obligations that work in tandem with a state‟s domestic extradition law. It involves a complex admixture of levels and forms of regulation, i.e., incorporating various levels of international and domestic laws. Here, international law refers to public international law. The recent extradition cases of Gary McKinnon and the NatWest Three which have brought forth so much controversy on the international scene also serves as a point guard to the literature underlying Extradition, particularly the United Kingdom (UK)-United States (US) Extradition, which is the main focus of this research. An interplay of international law and domestic law is a consequence of Extradition. While so much controversy surrounds the practical aspect of the concept, it is worthy to mention that Membership of the European Union and the enactment of the Human Rights Act 1998 have incorporated two bodies of substantive international law into English domestic law. International relations is obviously a wonderful concept and if it could bring fraudsters like the NatWest Three to book and discover the acts of McKinnon who, if he was not traced, would have brought havoc to the US and indeed, the entire world, the war against terror would not be an effort in futility.

Reviewed by: Gender Stereotyping: Transnational Legal Perspectives Zanita E. Fenton (bio) Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2010), 288 pages, ISBN 9780812242140. I have focused on domestic law almost the entirety of my career.1 I was recently confronted, however, with how intimately the domestic law and international law might interact when I examined the United States case of Town of Castle Rock v. Gonzales,2 regarding the enforcement of protective orders in domestic violence contexts. The facts of this case are also the basis for Jessica Gonzales v. United [End Page 243] States,3 submitted to the Inter-American Commission on Human Rights. Human rights Conventions, such as the International Covenant on Civil and Political Rights (ICCPR)4 or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),5 may provide new insights and avenues to address the injustices presented and permitted by US domestic laws and the interpretations of these laws. Although the United States Supreme Court found no due process violation in the failure of the state to protect6 or even to follow up in the instance of a validly issued state protective order,7 international conventions could provide greater protection by requiring “due diligence” in fulfilling the state’s obligation to protect its citizens. Writing about this case enlightened my perception of the divergences and commonalities between International Human Rights law and the domestic laws of the various nation states. Plainly, Gonzales is a case where the United States would benefit from an account of alternative norms. The US should be a leader in creating new norms that better diminishes gender stereotypes rooted in concepts of women as property,8 instead of reaffirming those stereotypes. Gender Stereotyping9 by Rebecca Cook and Simone Cusack directly addresses the global uses of gender stereotypes that perpetuate the subordinated status of women. The wisdom and guidance within its covers is of great value and relevance to the Gonzales case: The general obligation to protect requires States Parties to take appropriate measures to address violations by non–state actors, such as the family, the community, and the market. The obligation to protect women against wrongful forms of gender stereotyping by non-state actors includes undertaking ongoing awareness-raising regarding biases and prejudices against women, applying sensitizing, preventive, and other appropriate legislations, policies, or programs, introducing effective procedures in response to complaints against non-state actors, and implementing [End Page 244] appropriate remedies to redress wrongful forms of gender stereotyping.10 Gender Stereotyping is especially timely in that my “epiphany” is not unique. There seems to be a growing trend amongst lawyers trained in the United States, as well as in other nations, to make that connection not only apparent, but one that is effective for facilitating change. For example, there is an increasing number of lawyers, from a variety of locations, who work with the “Bringing Human Rights Home Lawyers’ Network.” 11 This project encourages United States compliance with international human rights law, including through the United Nations and Inter-American Human Rights systems and the development of strategies to use human rights law in US courts and legislatures. Gender stereotypes are ecumenical and entrenched in astoundingly consistent ways across locations. They have had an integral role in the enduring nature of all forms of gender discrimination and subordination. Stereotypes may have different content in accordance with the relevant country and context, as well as pervade a cross-section of national life, in education, employment, health, family relations, or other areas of life. With this in mind, the elimination of gender discrimination and the role of state actors in this process is the central purpose of Gender Stereotyping. Gender Stereotyping draws on both domestic and international law, and uses the judgments of the courts and human rights treaty bodies to suggest ways to eliminate gender stereotypes and, ultimately, women’s inequality by utilizing the transnational legal process. Gender Stereotypes makes the connection and relevance between domestic law and international law in a fluid and productive manner. Its approach is one that attempts to fully address the complexities of global realities as international law tries to navigate differences...

The general understanding of law is that, it is ‘a body of rules’ or ‘social order’ that regulate the relations in human community, various entities, societal harmonization and individuals to govern their respective mutual understanding. The law defines and regulates societal relationships. It “is an element, the only one, by which we are able to differentiate definitely and successfully between a legal, moral and religious order.” It is a balancing technique of the rights and obligations of humans in their daily life. The term law is a “grand norm” and thus, a general concept replacing all kinds of “laws”; It could be municipal law of states such as civil law, criminal law, liberal law, business law, intellectual property law, economic law, feudal law, socialist law, law, medical law, land law, media law, etc. Municipal law is a domestic law, or name used in replace of the national, statutory, internal law or domestic law of states. It applies to nationals, body of politic and others within state in that limited territorial jurisdiction. The legislative organ of state has supreme power to enact and enforce such laws in the country. The municipal law of the state is usually limited in the scope to nations and regulates the domestic issues, international law is a beyond that. On the other hand, there are certain areas of law developed at international level. These are; private international Law, international human rights law, international humanitarian law, international criminal law, refugee law, international environmental law, international economic & trade law, international space law, and Islamic law [Sharia law] is among few to mention. Municipal law and international law share something communal (or have similar normative conducts as being a law and regulate certain acts). Laws, whether national or international are not permanent; it can be made, amended, reformed and altered at any time. There is no clear way to measure law, its purpose and identify clear line between them to develop a certain model for each of them. The question may arise does international law satisfy legal requirements or normative standards to be considered as [international] law? Some legal scholars and jurists argue ‘if international law can be entitled as a true law or not’. To know whether international law is a true law or not it is would be nice to know the nature and functions of international law. Those who accept the legality of international law consider it as a prefect law with similar footing as the municipal law. Is international law a law? Those who support this view says, it is law because it doesn’t have another name than to be considered as [international] law; it is law because it has a certain procedural and substantive rules to follow; it is a law because, it regulates certain international acts conducted worldwide; it is a law because municipal law is usually limited to a territorial jurisdiction and do not reach for international remedies; it is a law because world nations have something to use separately and to share communally based on general principles of international law; international law regulates the relationship between states, international organizations and individuals across the globe; international law is designed in its own way, applies among sovereign states, and usually applied by international tribunals; international laws are sometimes practiced in national courts, in foreign offices, in international organization offices, and in regional organization offices. Therefore, international law exists as a law, even as a perfect law. International law is a prefect legal system has yet to develop and it doesn’t have to be seen through the ‘eyeglass’ of the municipal law of the states. Thus, the purpose of this article is to elaborate the views regarding this issue and to forward different legal arguments. Under the following title, I have provided three topics. Opposing view, proponents, my take regarding these views and application of international law.