Domestic Legal Order Research Articles

The Relationship Between Public International Law and Domestic Law in Switzerland - Das Verhältnis von Völkerrecht und Landesrecht in der Schweiz (in German)

The question as to the relation between domestic law and public international law can not be answered in the abstract and general. State practice differs, and various academic perspectives compete. The paper first clarifies some basic notions (part A). It explains the Swiss doctrine and case-law relating to three classical issues, namely the integration of international law into the domestic legal order (B), the collision between international law and domestic law (C), and the direct applicability of international legal provisions (D).

Supremacy Lost: International Law Meets Domestic Constitutional Law

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

The Implementation of Grave Breaches into Domestic Legal Orders

States are required to implement grave breaches within their domestic criminal law. The obligation to enact legislation necessary to provide effective penal sanctions in relation to grave breaches lies at the heart of any meaningful prosecution of grave breaches of the Geneva Conventions. Knowing what is required of states and understanding the different models of implementation is essential. Yet, despite its importance, this specific obligation has led a somewhat shadowy existence, often neglected in state practice and academic research. It is against this background that the present contribution aims to bring into focus the scope and precise content of this somewhat ambiguously formulated obligation.

Discontinuity in the Internalization of the World Trade Organization Rules: Assessing the Democratic Deficit Critique Against the World Trade Organization Dispute Settlement System

International institutions are often criticized for their democratic deficit. Among these institutions, the World Trade Organization (WTO) dispute settlement system is most frequently targeted. This article focuses on the strength of this critique and aims to refute its factual premise through the examination of several Panel and Appellate Body decisions. The author also argues that the WTO dispute settlement system deliberately leaves a certain degree of discontinuity between members’ domestic legal orders and the WTO Agreement, such that the system pays a degree of deference to member states and allows substantial discretion in the process of internalizing the rules of the WTO Agreement within domestic legal orders. Finally, the author concludes that this discontinuity remains strong, and serves to enhance the democratic autonomy of member states instead of defeating it.

B) UNDERSTANDINGS SIGNED BY ITALIAN REGIONS AND AUTONOMOUS PROVINCES IN 2009

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.

The European Arrest Warrant and Domestic Legal Orders. Tensions between Mutual Recognition and Fundamental Rights: The Italian Case

This article presents and discusses some recent decisions on the European Arrest Warrant by the Italian higher courts, the Constitutional Court and the Court of Cassation. Though not as challenging to the EAW as the ‘first round’ of European judgments of 2005, they bring however some interesting developments on aspects concerning the enforcement of EAW and domestic provisions related to fundamental rights protection. Secondly, these cases allow analysis of mutual recognition, the principle underlying the whole EAW system. A first element stressed here is the importance of dialogue among European actors on third pillar instruments and more generally subjects involving criminal law and justice administration. Secondly, it is suggested here that there are several views on the EAW and mutual recognition. Analysis of Italian case law reveals that domestic courts are faced with the issue of enforcing EAW and securing fundamental rights protection; in so doing, they remain anchored in the domestic system of legal guarantees, which could lead to divergent solutions across European states. The suggestion made is that mutual recognition requires an active role to be played by courts, that it has systemic implications, and that it requires domestic courts to be able to exercise some political discretion, not so different as under extradition schemes.

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

Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform – the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.) Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation.PER/PELJ Vol. 3 2008: pp. 1-49

Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law

The article addresses the question of whether the metaphor of the “ legal pyramid ” as the structural representation of the relationships between international and domestic law should be deconstructed on account of the internationalization of constitutional law. On a theoretical level, it argues that the pyramid is a concept, linked to Kelsenian monism, which has outlived its usefulness. But dualism should also be overtaken by a theory of legal pluralism. On a doctrinal level, the linkage of the orders by the doctrine of self-executing international norms should be reconstructed and understood as the balancing of constitutional principles. A third thesis refers to the value judgments implicit in the question, holding that it should be answered within the domestic constitutional process, according to the experience, expectations, and convictions of the various constitutional constituencies. Given the state of international law, it would be preferable to have the capacity legally to limit the effect within the domestic legal order of a norm or an act under international law if that norm or act confl icts sharply with constitutional principles

Returning the Protection of Human Rights to Where They Belong, At Home

This article seeks to explain and discuss the implementation of the European Convention on Human Rights (ECHR) at national level. It critically evaluates the Recommendations adopted by the Committee of Ministers in May 2004 in an attempt to improve the implementation of the ECHR in the domestic legal orders of the member states of the Council of Europe. In addition, it considers the execution of judgments of the European Court of Human Rights (ECtHR). Finally, this article critically examines the novel ‘pilot judgment procedure’ developed by the ECtHR in order to tackle the phenomenon of ‘repetitive’ or ‘clone’ cases.

THE ACTIVITY OF THE INTERNATIONAL COURT OF JUSTICE IN 2008

On 27 June 2013 Italy ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). This ratification was the result of the recent focus of socio-political forces on the serious and widespread phenomenon of violence against women in Italy. This article seeks to analyze the issue of how to ensure the effective implementation of this comprehensive and complex source of international obligations in the domestic legal order. In this analysis, specific attention will be devoted to one particularly significant aspect of non-compliance with the Istanbul Convention, i.e. the rights of female victims of violence to receive State compensation as a form of reparation, enshrined in its Article 30. At the same time, the analysis of Article 30 will raise more general points with regard to how to remedy instances of failed implementation of human rights treaties, and most importantly on the possible role of national courts in ensuring respect of such treaties when the latter are not assistedby a supranational judicial authority in charge of their interpretation and implementation.

International Treaties in Germany: The Legislative Competence of Parliament and the Interpretative Competence of the Courts

This article analyses certain issues concerning the implementation of international-treaty obligations in the German domestic legal order. Traditionally the German legislator has been understood as possessing competence to pass legislation inconsistent with international treaty obligations it had previously con-sented to. In addition, the degree to which decisions of the ECtHR are binding on the German judiciary is still unclear. The article aims to develop new answers to both problems, linking both levels of imple-mentation and finding the right balance between the integrity of international law and of the domestic legal order.

REVIEW OF BOOKS

In its judgment No. 238/2014 the Italian Constitutional Court, whilst appearing to show respect for the ICJ’s 2012 judgment in Jurisdictional Immunities of the State, makes notable criticisms of that judgment and insists on its own role in the progressive development of international law in the field of State immunity. In particular, the main legal argument of the Constitutional Court, based on the fundamental and inviolable character of the right of access to justice in constitutional law, can also be used, although modified to some extent, in international law. The Court’s argument can also resolve the possible conflict between the international norm of State immunity, on the one hand, and the international norms on fundamental human rights and access to justice, on the other. The present contribution seeks to demonstrate that: (a) the right of access to justice and the connected right to reparation for violations of fundamental human rights are established by two customary international norms; (b) there is a potential conflict between these norms and the norm of State immunity; (c) this conflict becomes real and concrete when the limits on access to justice and reparation laid down by immunity are unjustified in accordance with the rule of “equivalent protection”; and (d) the solution to that conflict derives from the normative superiority of the customary norms on access to justice and reparation (being peremptory in nature when functionally linked to the violation of fundamental human rights) over the norm of State immunity. The judgment of the Constitutional Court, utilizing legal reasoning that can also translate to the level of international law, demonstrates that osmosis may occur between the arguments used in constitutional and international law, and that today there is growing interaction between the domestic and international legal orders and their common values. The law of human rights, placed at the very center of the Constitutional Court’s judgment, is the field in which this community of values emerges most clearly.

The Interplay between National and International Law - Its Economic Effects Drawing on Four New Indicators

This paper analyzes whether the interplay between national and international law has any discernible effects on economically relevant variables. The specific aspects dealt with include (i) the difficulty of delegating competence to international bodies in the first place, (ii) the difficulty of reversing delegation decisions, (iii) the way that international law is transformed into the domestic legal order, and (iv) the potential role of national courts in drawing upon international law. The paper asks whether institutional arrangements corresponding with these aspects have effects on a country's risk rating which is used as a proxy for credibility. Credibility affects investment and growth. It is hypothesized that the role attributed to international law in domestic legal orders can improve the credibility of nation-state governments. The paper presents a new database containing information on the respective institutional arrangements in 56 countries. The database can also be used to assess the long-lasting discussion of monism vs. dualism empirically. Both the difficulty-of-delegating and the role-of-national-courts indicators have fairly robust effects on credibility. Monist orders do, however, not confer any more credibility on governments than dualist ones.

The Law of International Criminal Procedure and Domestic War Crimes Trials

AbstractThis article deals with the question of possible effect of the law of international criminal procedure for domestic war crimes trials. With the increasing number of national prosecutions for war crimes this question will gain in relevance.The article starts with an exploration of the origin and development of the law of international criminal procedure, to reach the conclusion that because of the lack of a strong foundation it is difficult to discern firmly established rules in this field. Next, two areas are examined where the law of international criminal procedure is capable of producing effect for national trials: human rights and rules that have developed in the specific context of war crimes prosecutions.Whether rules of international criminal procedure are formally effective in the domestic legal order remains to be seen. There is no clear obligation under international law to do so. Furthermore, the law of international criminal procedure may be difficult to harmonise with domestic inquisitorial systems.In spite of these difficulties, the article concludes that national courts will increasingly face similar procedural problems in complex war crimes trials as international criminal tribunals and will be happy to learn from their experiences.

The Mobility of Companies in Europe and the Organizational Freedom of Company Founders

Prologue: the mobility of a company law professor Klaus Hopt 's disciples have asked me to give a presentation in his honour on the topic of “mobility of companies in Europe”. To be honest, I would have preferred another subject which focuses much more on the person at the centre of this event. The topic would read: “The mobility of a company law professor in Europe”. There exist more than enough articles on the future of the “real seat theory” and the “incorporation theory” regarding the legal framework for enterprises after the famous ECJ decisions in Centros , Überseering and Inspire Art . Nobody seems to care about individuals. Yet in the case of Klaus Hopt we should have second thoughts: Is he a legal person? Of course he is – there is hardly another writer who has acquired so much practical and scientific experience in law and affiliated research areas. Does he have a registered office? I think so – it should be at the Max Planck Institute for Foreign and International Private Law in Hamburg. Can we attribute a siège réel to him? This is hard to say. Starting his academic career in Tübingen, he has moved his chair to Florence, to Berne, to Munich and to Hamburg. If he were a company, he would have been liquidated on this itinerary at least three times. Currently he teaches in Paris, in New York and in many other places. He travels around the world, giving university lectures, attending committee meetings and organising conferences. Is it possible to say – as the European Court of Justice put it in Daily Mail – that he owes his existence to the domestic legal order of only one specific Member State of the European Union? Or should we qualify him as a supranational entity, the human role model for the “European Company”, who is able to move from country to country without losing his identity, being able to communicate in many different languages, feeling at home in many different legal orders?

The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India

The multiplication of legal orders is characteristic of what one could call an age of globalization and counter-hegemonic globalization. In this age, the relationship between international law and other normative orders is increasingly important. The dominant disciplinary frameworks that provide explanations of such a relationship are focused on compliance with and/or the effectiveness of international norms in domestic legal orders and are derived from international relations. In this article, I examine the limits and possibilities of such approaches through a case study of the use of law (at multiple levels) by one of India's most prominent social movements, the Narmada Bachao Andolan (Save the Narmada). The article argues that the use of law by a social movement is a concrete instance of counter-hegemonic globalization in which international law is one of many different legal orders, a situation of global legal pluralism, in which it is impossible to tell in advance which normative order will best advance cosmopolitan goals such as human rights.

Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States by Nicolaos Lavranos, (Groningen: Europa Law Publishing, 2004), 310pp. ISBN 90-76871-19-1

Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States by Nicolaos Lavranos, (Groningen: Europa Law Publishing, 2004), 310pp. ISBN 90-76871-19-1 Get access Mario Mendez Mario Mendez Search for other works by this author on: Oxford Academic Google Scholar Yearbook of European Law, Volume 24, Issue 1, 2005, Pages 652–660, https://doi.org/10.1093/yel/24.1.652 Published: 01 November 2005

International Law and US Courts: The Myth of Lohengrin Revisited

This paper attempts to shed light on the current attitude of US courts towards international law. Regardless of the formal instruments of incorporation, the extent to which international law is used by courts within the formal constraints of constitutional provisions largely depends on the legal culture prevailing at any particular time. This sketchy and selective overview of the attitude of US courts unveils a tendency to frame international law within the general framework of the constitutional law discourse. The main tenets of American constitutionalism such as separation of powers and federalism often shape the posture of courts in determining issues bearing on international law. The different nature of international law and its potentially pervasive effects on domestic law are frequently a cause for US courts to reject its proper implementation. At the base of this attitude, which seems to be the prevailing one at the moment, lies the perception that the fundamental postulates of the domestic legal order, as enshrined in the Constitution, cannot be altered by a body of law which does not exclusively emanate from the national societal body.

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490State immunity — Jurisdiction — Head of State — Scope of immunity of Head of State in office — Whether commission of international crime precluding Head of State from relying on State immunity — Whether such exception to immunity now recognized as rule of customary international law — Whether such exception applicable to terrorist offencesRelationship of international law and municipal law — Crimes against international law — Terrorism — Punishment of terrorist crimes by municipal courts — Whether requirement to prosecute such crimes constituting a rule of jus cogens — Whether such rules automatically incorporated into domestic legal order — The law of France

The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law

The current article addresses certain legal questions raised by the post Cold War direct administrations that were authorized by the Security Council. The first concerns the legal basis for such administrations, as it is not explicitly provided for in the United Nations Charter. The second question concerns the implications of the direct (co-) administrations for the national legal order. The article also describes the legal basis for territorial administrations by the United Nations or Member States acting on its behalf and examines some of the implications of the direct (co-) administrations of territories for the domestic legal order. It explores, in particular, if and to what extent the Security Council-authorized administrations may directly penetrate the domestic order, as well as whether the directly applicable decisions resulting from such penetration would be of an “inalterable” nature.