Domestic Legal Order Research Articles

Sovereignty, Primacy and the Common Law Constitution: What Has EU Membership Taught Us?

This chapter reflects on the notion of parliamentary sovereignty as it is understood in the UK in the light of the Supreme Court's judgment in R (Miller) v Secretary of State for Exiting the European Union, and, more generally, against the backdrop of the UK's membership of the European Union. In particular, in the paper I explore substantive questions about the accommodation of the EU primacy doctrine by the domestic constitutional system and broader questions about the way in which these matters have been dealt with at the level of constitutional theory. In doing so, I pay particular attention to the question whether this episode in UK constitutional history teaches only specific lessons about how EU law has been accommodated — lessons that may be of little if any relevance when or if the UK fully withdraws from the EU — or lessons of a more enduring kind that will remain pertinent long after withdrawal. I argue that it is lessons of the latter type that can be derived from attempts to understand the relationship that has existed this last half-century or so between the domestic and European legal orders. However, I argue too that the extraction of those lessons involves a degree of supposition and inference that speaks volumes about the way in which fundamental constitutional questions are (and are not) confronted in the UK. The UK’s European sojourn is thus revealing, but only to a degree, of the substance of the domestic constitution. And, to the extent that it is less than revealing, the opacity that we encounter serves not simply to obscure the substance but to illuminate something more visceral: namely, a preference that can be discerned within UK constitutional adjudication, at least when it comes to the very biggest questions, for constructive ambiguity over conceptual clarity.

Regulating the Multinational Enterprise as Entity, as a Network of Links and as a Process of Production

Since the 1970s there has been an explosion of regulatory efforts that have arisen, both within and beyond law, the object of which is to manage MNEs. The MNE itself has also exploded as body on which law can be imposed. It very much retains its identity as an object (the enterprise) of regulation and management. But it has increasingly also been understood as a conduit-a convenient intangible aggregation of the nexus points that together define the arc of its operation, or even as the framework within which global production is coordinated (and with it risk allocated and the distribution of value added is directed). It is to a consideration of those changes as well as the strong underlying lines of continuity that this short essay will focus. Section 2 considers traditional approaches to the regulation of MNEs and its problems. These sketch out the evolution of law as a means to construct and then regulate the MNE as an entity, and to manage the linkages and connections through which the MNE is constructed. Section 3 then exams emerging regulatory forms beyond the state and its domestic legal orders. The emerging techniques suggest both the evolution of law and its detachment form the state-that is, this evolution suggests the character of the transnational in regulation of which law (in its traditional sense) remains a part but no longer at the center of the regulatory project. Section 4 then briefly considers the character of the object of regulation. Some elements of transnational regulatory structures appear to be moving from the objectification of the MNE as an entity and the management of its form through interventions in its linkages and connections, to the management of the production process which is itself the object of MNE function. In the MNE one encounters entity, connections and linkages, and functionally differentiated production chains. Each aspect of the MNE is partially and simultaneously by layers of regulatory governance, the effectiveness of which is limited to that portion of the idea of the MNE to which it attaches. Understanding its form and structure-and its use-may drive truly transformative change. This reconsideration of the character of the MNE then may have a substantial effect on the way in which transnational law is understood and applied, that is that transnational law produces polycentricity in governance but that its object also acquires a polycentric character that shapes its amenability to regulation by law.

Non-State Actors and the Implementation of the World Heritage Convention in Asia: Achievements, Problems, and Prospects

AbstractThe philosophy underlying the UNESCO World Heritage Convention of 1972 [WHC] consists in promoting a system of international co-operation in the context of which the States Parties commit to preserving the cultural treasures of “outstanding universal value” located within their territories. However, it is a fact that today many properties inscribed on the List set under the WHC are endangered. This paper will focus on the role played by “non-state actors” in the enforcement of the WHC. It will thus dwell upon the relationships between public and private interests, on the one hand, and between international and domestic legal orders, on the other. Its purpose is to map out and discuss the most salient problems about the involvement of non-state actors—particularly non-governmental organizations [NGOs] and private companies—in the monitoring and implementation of the WHC.

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

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.

Offenders’ Rehabilitation: Towards a New Paradigm for EU Criminal Law?

EuCLR European Criminal Law Review , Seite 223 - 243

The Concept and Essence of the State Legal Entity in Domestic and Foreign Legal Orders

The Concept and Essence of the State Legal Entity in Domestic and Foreign Legal Orders

BACK TO THE FUTURE: THE RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT AND ITS PRINCIPLES IN THEIR 25TH ANNIVERSARY WITH A SPANISH PERSPECTIVE

The Rio Declaration and its principles had a ground-breaking impact in international law as well as in domestic legal orders. They went beyond their soft-law nature and became a normative horizon that has guided the evolution of international environmental law. Some of the principles then became customary law and others found their way into international agreements. Moreover, they empowered non-state actors that became unexpectedly their enforcers. Changes in the global scenario have led to their revision in the form of an affirmation of the principle of sovereignty “taking into account national circumstances” and responding to challenges of implementation and compliance at both international and national levels. The Rio Principles have the capacity to project themselves into the future, as shown in the case of the proposal of a Global Pact for the Environment that would incorporate most of them in a future treaty. In Spain, the Rio Declaration and its Principles have been referential for the development of environmental law and through the European Union have acquired a stronger normative intensity. However our commitment as a country has depended more on our obligations towards the European Union than on an individual pledge towards the planet.

A RUSSIAN APPROACH TO INTERNATIONAL LAW IN THE DOMESTIC LEGAL ORDER: BASICS, DEVELOPMENT AND PERSPECTIVES

This paper focuses on the Russian case involving the perception and implementation of international law (IL) within its national jurisdiction during the twenty-five year-period since the adoption of the 1993 Constitution. This constitution contains a rather progressive and radical principle concerning the place and role of IL in the domestic legal order. A brief look back at the development of Russia’s current legal order will help to facilitate evaluating the real nature of this provision. In an effort to establish this principle, States must provide a certain set of tools, both legislative and organisational. This paper introduces the development of this principle by examining Russian doctrine, modern legislation and practice, paying particular attention to Russian judicial activity. It thus presents an overview of the entire discussion regarding the implementation of IL within Russia. This implementation has been examined extensively from multiple perspectives, including the one based on a wide array of theoretical and normative materials, as well as the practice of law enforcement bodies, especially different courts, during the period under observation. This contribution attempts to characterise the Russian Federation’s general attitude and approach to the implementation of international obligations into its domestic jurisdiction.

SUPREMACY OF THE EUROPEAN UNION LAW AS THE FUNDAMENTAL OF THE INTERACTION BETWEEN THE EU LEGAL SYSTEM AND THE LEGAL SYSTEMS OF ITS MEMBER STATES

The main attention is paid to the analysis of the place of the principle of the supremacy of the EU Law within the EU legal system, direct effect and direct applicability of the EU law as well as to the interaction between the EU’s legal order and domestic legal order of the EU member states. The prerequisites for the direct effect and direct applicability of the EU norms are linked to their self-executing character as regarded by the ECJ jurisprudence in case 57/65 Lütticke. While researching the interaction between the EU’s legal system and the legal systems of the EU member states author points out the jurisprudence of the Federal Constitutional Court of Germany related to the EU’s legal nature and its peculiarities. It has been underlined that whereas the European Court of Justice pleads constantly and consequently for the supremacy of the EU law over the domestic law, including the constitutional regulations, domestic courts, f.e. the Federal Constitutional Court of Germany, try to set the borderline for direct effect and direct applicability of the EU norms. This borderline is deemed to line with the fundamental rights and freedoms, as they are guaranteed by the constitutional norms in the EU member states. Key words : legal system of the EU, principle of the supremacy of the EU law, direct effect of the EU Law, direct applicability of the EU Law.

The Law of Treaties Before Domestic Courts and Human Rights Bodies

This paper does not aim to reiterate the law of treaties as such. Rather, we focus on how the law of treaties is used and applied in domestic courts -- a continuously relevant perspective as a growing body of substantive international rules and norms is enshrined in treaties (‘treaty law’), with normative effect in domestic legal orders. Domestic courts may be faced with the entire range of rules codified in the 1969 and 1986 Vienna Conventions on the Law of Treaties. Judging from an inventory of case based on the ILDC database, however, it seems that certain questions are especially urgent: such as those regarding consent, entry into force, termination, interpretation and self-executingness of treaties. The sections in the paper generally correspond to themes and stages in the ‘life of a treaty’ which play a role in domestic case law: conclusion and entry into force (2); self-executingness (3); binding force and observance (4); reservations and declarations (5); interpretation (6); scope (7); successive treaties (8); amendment and modification (9); and termination and suspension (10). Occasionally the paper includes a reference to decisions of non-national human rights bodies, where this may provide relevant context. A central feature of the treatment of law of treaties questions in domestic case law is the interaction (and occasional confusion) between the domestic and international law level. This interaction often adds a particular dimension to the legal questions addressed by national courts -- such as when the domestic approval and the international expression of consent are combined to appraise the conclusion of a treaty, or when the normative scope of the international rule as such is linked to domestic law rules for incorporation to appraise its applicability in domestic law.

Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle.

Value promotion and europeanisation by EU trade agreements

Promoting values of the European Union has been on the EU’s external trade agenda since the 1990s. The Treaty of Lisbon established a general framework for values and principles, requiring the Union to pursue these concepts in the whole range of EU external relations, including the Common Commercial Policy (CCP). Therefore, the operation of CCP is governed not only by traderelated concepts such as progressive liberalisation, but it also reflects on non-trade concerns – e.g. protection of human rights, fair trade, or sustainable development – as well. This inclusive character of CCP is anchored also in the new external trade strategy of the European Union (‘Trade for all’), which stresses the importance of trade agreements concluded by EU in promotion of values towards third countries. The paper aims at addressing a conceptual and a procedural question related to this context: First, what kind of values of the European Union integrated in trade agreements can lead to the Europeanisation of domestic legal order of the third countries; and second, how these concepts can be implemented, i.e. how the process of Europeanisation is taking place using the example of the human rights promotion.

Hybrid Courts and Multilevel Rules of Law: Some Overall Considerations, Challenges and Opportunities

Hybrid courts are the third generation of international criminal bodies. Their hybrid nature makes them distinctive in the international judicial order. They combine domestic and international law; legal infrastructures; personnel at national and international level etc. They are praised in literature for overcoming resource and domestic legal infrastructural challenges and at the same time they stay close to the domestic legal order, and they satisfy the application of international criminal law in the specific cases. In addition, hybrid courts are instrumental in the process of transitional justice towards rule of law based societies. The concept of rule of law is contested. It can vaguely be defined as supremacy of law and it can be approached from various angles. The article claims that rule of law is a moral and/or political maxim with substantive values as it must provide both individuals and the public access to justice; it must provide a degree of equality of the subjects of law; it must provide predictability and legal certainty; it requires transparent procedures and impartial third party dispute mechanisms; and it must ensure the functionality of the legal system. Rule of law is further challenged when it is taken into the statist international sphere and into international criminal law. Where hybrid courts can serve the rule of law, they are also faced with rule of law challenges by governmental interference and by finding a balance between national and international law.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Immaterial public order: Legal response to social crisis?

This contribution aims to analyze the concept of the immaterial public order and its use in law and jurisprudence in the context of social crises. It understands this concept as an ancient response becoming part of the formalized legal order, to the societies in crises. The different legal orders must respond such challenges as the globalization, terrorism or financial crises of nowadays. The paper proposes to understand the immaterial public order as an instrument of law that helps the cooperation of the different normative orders as e.g. of the domestic legal order and the European law or international law. But this concept is useful not only to regulate the relationship between different legal orders but also to settle the relationship between the legislator and the constitutional judge. The analysis offers a general doctrinal approach while focusing on the French case.

Shifting the Matrix from Legal Passivity to a New Domestic Legal Order: Towards the Justiciability of Economic, Social and Cultural Rights in Cameroon

Despite the fact that economic, social and cultural rights (ESCR) have been categorised as ‘second-generation rights’, the evolving jurisprudence of international bodies indicate that these are legally recognised rights worthy of protection, promotion and enforcement. Subjecting the realisation of these rights to the availability of resources has become a structural limitation that is being invoked by many African states to justify why ESCR have not earned the recognition, protection, promotion and enforceability they deserve in their domestic legal systems. As Cameroon's attitude towards ESCR puts her in material breach of her obligations arising from the ICESCR and the African Charter on Human and Peoples’ Rights, it is argued that achieving recognition, promotion and protection of ESCR in Cameroon requires justiciability of ESCR as a new paradigm: by the very nature of justiciability, legislative and institutional reforms will have to be implemented.

The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control

This paper conducts a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts. First, the analysis negates the monist pyramid model by pointing out the limits of the supremacy of international law and constitution. Given the integration of conventionality control into constitutionality control in practice, this study instead presents the normative framework of the trapezium model, crowning the common values recognized by both national constitutions and international law. This research also contributes to clarifying the pro homine principle, a fitting concept to the trapezium schema, focusing on the most favorable treatment for individuals. Specifically, it proves the principle’s double function to offensively pierce or defensively safeguard the boundary between international and domestic legal orders. Finally, it argues that in cases of conflicting rights between different individuals, the pro homine principle relativizes an absolute protection of certain rights to strike a balance between them. In essence, conventionality control and constitutionality control should be coordinated by the open-minded, substance-oriented, pro homine principle within the pluralist trapezium, in lieu of the principle of the closed, formal supremacy of international law or constitution within the monist pyramid.

The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order)

Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the US and the European Union EU toward the rule of international law. Critics have argued that the US had abandoned its post-war role as the champion of the international legal order, being instead characterized by a “new sovereigntism” that seeks to protect the US from unwelcome intrusions of international law into the domestic legal order. By contrast, the EU has been seen as inherently committed to the rule of law and a strong international legal order. The aim of this paper is not to attack, much less to debunk, the conventional dichotomy between a scofflaw America one the one hand and an international law-loving Europe on the other. The more limited aim of this paper, rather, is to suggest that European attitudes towards international law may be changing, and that the EU is developing a European variant of the American new sovereigntism, in which a growing number of critics – concentrated primarily, though not only, among the pro-European left and center-left – have raised fundamental procedural and substantive objections to international rules and norms, which they depict as hostile to European laws and values, and against which they champion a defiant resistance. In a growing number of areas of international law, including international trade, economic regulation, food safety, data privacy, and national security, the European center-left has moved towards a sharply critical view of international law, alternatively resisting consent to unwelcome agreements, compliance with unwelcome international judicial decisions, and internalization of international laws perceived to be in tension with domestic EU rules and rights. These changing attitudes towards international law, in turn, have been magnified and translated into policy outcomes through the EU’s “hyper-consensus” political institutions, which have created multiple veto points empowering European critics to defy and deflect the intrusion of unwelcome international legal norms, rules, and agreements.

The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa.
 
 At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law.
 
 Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.

Transnational standards in the domestic legal order: authority and legitimacy

ABSTRACTTransnational standard-setting bodies, which guide the conduct of states and non-state actors in multiple fields of global governance, affect the content of domestic law in a manner that may reduce domestic input. This journal symposium approaches the evolving interactions between transnational standards and domestic legal orders through questions of authority and legitimacy. Jaye Ellis’ piece sheds light on the role of law in mediating democratic legitimation and scientific rationales. Vesco Paskale examines how food safety standard-setting advances the notion of epistemic subsidiarity, and thereby leaves autonomous decision-making space for state authorities. Finally, Ka Lok Yip’s article highlights variables in the field of humanitarian law which facilitate and hinder the domestic acceptance of guidance and standards.