(RIGHT)SOURCES OF DOMESTIC LAW – INTERNATIONAL CONTEXT

International sources –
Treaties
Customary international law
Treaties –
Uk is a dualist legal system,
Monist legal system – where states make international law part of their domestic legal order
Dualist states consider international law separate from domestic law, for example pm signs an
international treaty, this Is not binding until the parliament agrees to use the international law.
UNITED NATIONS;
Security council – produces resolutions that are binding( agreement that is then out into force) on all
member states e.g all states within the world order., 15 members, each member has one vote.
General assembly - produces non binding ( have no legaL force) declarations but they help set best
practices/ acceptable standards among states, 193 states ,
International court of justice- where states constent, they can submit their disputes international
adjudication

CUSTOMARY LAW

BASED ON TWO ELEMENTS-

STATE PRACTICE – the widespread repetition by states of similar international acts over time , this
is objective( not based on or influenced by personal feelings) , to qualify as state practice the acts
must be consistent and general international practice.

OPINIO JURIS( AN OPINON OF LAW) –( the requirement that the acts must occur out of a sense
of obligation and the acts are taken by a significant number of states and not rejected by the
significant number of states) is to establish a legally binding custom, it is a subjective obligation
customary practice based on the belief of the state, something the state believes so they carry it out,
unlike human rights which is compulsory
Customary international law involves the principle of custom, along with general principles of law
and treaties ,

THE EUROPEAN UNION-

Comprises of manty political and legal institutions-
European parliament, European council, European commission, court of justice, European central
bank, court of auditors
Located mainly in brussels.

THE LAW OF THE EU

Treaties do not impose laws.
Indirect effect EU law
A principle of interpretation whereby the courts of the member states of the European union must
interpret national laws, as far as possible in a manner that is consistent with provisions of EU Law
Even if they don’t come into direct effect
Indirect effect is an obligation placed on a national court, to interpret their national law compatibility
with eu law
Indirect effect- when a law is not clear, precise, then what happens is that the states will take into
account these laws, but will not be directly put into effect.

DIRECT EFFECT IN EU LAW- ALLOWS INDIVIDUALS TO IMMEDIATELY APPEAL

EUROPEAN PROVISON BEFORE A NATIONAL EUROPEAN COURT. THIS PRINCPLE
APPLIES TO CERTAIN EUROPEAN ACTS.
DIRECT EFFECT OF EU LAW HAS BEEN EXPRESSED BY THE COURT OF JUSTICE IN THE
JUDEMENT OF VAN GEND EN LOOS OF 5 FEB 1963. IN THE JUDGEMENT THE COURT
STATES THAT THE EUROPEAN LAW NOT ONLY GIVES RISE TO (ENGENDERS)
OBLIGATIONS FOR EU COUNTRIES, BUT ALSO RIGHTS FOR INDIVIDUALS.
INDIVIDUALS MAY THERFORE TAKE ADVNATAGE OF THESE RIGHTS AND DIRECTLY
APPEAL EUROPEAN ACTS BEOFRE NATIONAL AND EUROPEAN ACTS.
THE DIRECT EFFECT GOES ALONG WITH THE PRINCPLE OF PRECEDENCE( PATTERN)
IT ALLOWS INDVIDUALS TO IMMEDIATELY APPEAL EUROPEAN LAW BEFORE
COURTS, INDEPENDENT OF WHETHER NATIONAL LAW TEST EXIST. BUT THE DIRECT
EFFECT PRINCPLE ONLY WORKS IF THE LAW HAS SEVERAL CONDTIONS(THE LAW IS
CLEAR, PRECISE, UNCONDITIONAL AND DOES NOT GIVE THE MEMBER STATE
WEIGHTY CAUTION) PASSED DEFEINED BY CJEU ( COURT OF THE JSUTICE OF THE
EUROPEAN UNION)
HORIZOANTAL AND VERTICAL DIRECT EFFFECT;
VERTICAL DIRECT EFFECT- IS OF CONSEQUENSE IN RELATIONS BETWEEN
INDIIDUALS AND THE COUNTRY. THIS MENAS THAT INVDIVIDUALS CAN APPEAL A
EUROPEAN PROVISON (The ability of a piece of European Union (EU) legislation to be
enforced by an individual in a court of a member state) IN RELAITON TO THE COUNTRY
HORIZAONTAL DIRECT EFFECT – IS CONSEQUENTIAL ( RESULTING) IN RELATIONS
BETWEEN INDIVIDULS. THIS MEANS THAT AN INDIVIDUAL CAN APPEAL A EUROPEAN
PROVISIOSN IN RELATION TO ANOTHER INDIVIDAUL.
DIRECT EFFECT AND PRIMARY LEGISALTION
Primary legislation is concerned with for example texts, the court of justice established the principle
of the direct effect in the van gend and loos judgment, meaning primary legalization have direct effect
only if it is clear, precise, unconditional and don’t call for any additional measures either national or
European .
DIRECT EFFECT AND SECONDARY LEGISALTION
Regulations are directly applicable they always give rise to equal rights and obligations. They have a
direct effect

Directives- instruements that are broadly drafted used as guildenes issued to the member of
states. Directives are not automiacally applicable unlike regaualtions. Directives are points that should
then become regulations. The directive must. by exchanged by them into their national laws
Directives are give 2 years to be passed
When a member doesn’t like a directive they directive cant be directly applicable.
Directives can be directly effective when they are clear, precise, unconditional ( complete)

Court of justice of eu (ECJ)

The court of justice interprets EU law to make sure it is applied in the same way in all EU countries,
and settles legal disputes between national governments and EU institutions.
The court of justice can be used by individuals, companies or organisatons, if they feel as if there
rights have been infringed.
Court of justice is located in Luxembourg, with 1 judge from EU country and 9 advocates.

COUNCIL OF EUROPE – 1949

Founded in ww2 to try and unify countries in Europe
They protect human rights, demorcay and rule of law
There is 47 member states whilst the EU has 27 members, russisa is apart of the council of Europe but
not of THE EU.
To be apart of the coe the state must actively promote the enjoyment of human rights and
fundamental freedoms within its territory.
The main achievement of coe is the European convention of human right s (ECHR)
THE ECHR is very important, it was the first comprehensive regional human rights treaty. It protects
the human rights of people in countries that belong to the council of Europe. All 47 member states of
the council , including the uk that have signed the convention.
Located in Strasbourg
NATIONAL COURTS USING ECHR
HUMAN RIGHTS 1998- incorporates echr into domestic law
Domestic courts must interpret” as far as possible” primary legalization in conformity with ECHR
Section 3 ( s3)
If a interpretation is not possible, a declaration of incompatibility is made.
With secondary or delegated legislation e,g public authorities able to make law from previous
legalization, if an interpretation is not possible, it can be declared as unlawful

SOURCES OF DOMESTIC LAW: THE INTERNATIONAL CONTEXT AND

INTERNATIONAL LAW MORE INFO OR THE SAME

THE COUNCIL OF EUROPE

The council of Europe (Coe) is a different organization to the European union (EU)
The council of Europe is an organization of European countries that seeks to protect democracy
and human rights and promote European unity by fostering cooperation on legal cultural and
social issues, the council is headquarters in France, Strasbourg.
There are 27 countries in the eu
The council of Europe is made up of four principal bodies, the committee of ministers, the
parliamentary assembly, the congress of local and regional authorities of Europe and the
secretariat.
The aim of the council of Europe is to achieve a greater unity between its members for the
purpose of safeguarding and realizing the ideals and principles which are their common heritage.
To protect human rights, pluralist democracy and the rule of law;
- To promote awareness and encourage the development of Europe’s cultural identity
and diversity;

- To seek solutions to problems facing European society, such as: discrimination against
minorities, xenophobia, intolerance, environmental protecting, human cloning, terrorism,
human trafficking, organised crime and corruption, cybercrime, violence against children;

- To help consolidate democratic stability in Europe by backing political, legislative and

constitutional reform.

EUROPEAN CONVENTION ON HUMAN RIGHTS

ECHR – protects the human rights of people in countries that belong to the council of Europe. All
47 member states of council, including the UK they have signed a convention(agreement). The
convention (agreement ) is the ‘ convention for the protection of human rights and fundamental
freedoms.

The European Court of Human Rights (ECtHR) hears actions brought by states against other
states alleging infringement of human right obligations. The ECtHR can also hear actions brought
by individuals, but only if the right of individual petition has been explicitly accepted by a
country.

HUMAN RIGHTS ACTS 1998

It sets out fundamental rights and freedoms that everyone in the UK is entitled to. It includes the
rights set out in the European convention on human rights ( echo) into domestic British law.

There are 16 human rights under this act. For example the right of life, The right to liberty and
freedom and the right to the pursuit of happiness

Council of Europe (CoE) is a different organisation to the European Union (EU)

The rulings of judges are contained in judgments NOT judgements.

Individuals can petition the ECtHR to have their case heard once domestic remedies have been
exhausted. There is NO right of appeal.

The ECHR and the ECtHR were established by the Council of Europe. They are NOT part of the
EU

The Human Rights Act 1998 has particular force in the UK Constitution because it grants the
judges the power ‘if at all possible’ (s.3(1)) to interpret all legislation in line with an item of
international law: namely the ECHR

Human rights act 1988- fill the blank

Human Rights Act 1998 and Public Authorities Section 6 (1) of the HRA 98 makes it unlawful for a
public authority to act in a way which is incompatible with a Convention right. This means that, if a
public authority does act in a way that infringes an individual's human rights, as recognised by the
ECHR that individual may bring an action directly against the public authority. Section 6(3)
specifically states that courts should be considered public authorities for the purposes of section
6(1). A public authority may have a good defence to an action if primary legislation meant that they
could not have done anything other than infringe the individual’s rights

Human rights and statutory interpretation

Section 3 of the human rights act 1998 requires courts so far as it is Possible to do so read and give
effect to legislation in a way that is compatible with the Convention rights. This is an important
section of the Act and has led the courts to sometimes interpretations of Statutes if it has been
necessary to render them compatible with convention rights.

Human Rights Act 1998 and Declarations of Incompatibility

If it is not possible to interpret legislation in a way that makes it compatible with Convention rights
then s4 of the Human Rights Act 1998 gives certain courts the power to issue declarations of
incompatibility. A declaration of incompatibility does not affect the legal validity of the Legislation
but it is political embarrassing for Parliament. Also, if an individual's rights are infringed by the
legislation then the declaration of incompatibility will provide support for a claim by them against
the government as a public authority that has acted in a way that is incompatible with Convention
rights.

A declaration of incompatibility has no effect upon the legal validity of a piece of primary legislation.
It CAN affect the validity of subordinate legislation IF the primary legislation allows for this.

S6 HRA 1998 makes it unlawful for PUBLIC authorities to act in a way that is incompatible with the
Convention Rights

What is the difference of EU and Coe

The council of Europe is more of a cultural institution that is mainly concerned with developing and
spreading the awareness on human rights to its members.
The European union is more of a political group that acts as one unified nation in the Bigger world
market,

The relationship between the EU have been incorporated into UK law since the enactment of the
European Communities act 1972.

DIRECT APPLICABLITIY-
 Refers to whether a piece of EU legalization becomes part of member states national law without the
need for any implementing legalization
DIRECT EFFECT
The ability of piece of European union legalization to be enforced by an individual in a court of
member state.

 Vertical direct effect means that you can use EU legislation against a member state.

 Horizontal direct effect means that you can use EU legislation against another

individual.

Directly applicability rules automatically become part of the Law of each domestic legal system
without further action on the part of the member state necessary.
Direct effect

An individual may rely upon a rule before a national court if that rule has direct effect. Any form of
EU law, Treaty, Regulation or Directive can have direct effect IF four overlapping conditions are
satisfied. The provision of EU law must be 'clear and unambiguous it must be 'unconditional', it must
'not require further action by the EU or a Member State' and finally it must 'be capable of creating
rights for individuals'. Directives can not usually satisfy these conditions unless, at least, the time
limit for their implementation by Member States has passed. Even then, a Directive will only be
found to have vertical Direct Effect and not horizontal

Indirect Effect:

National courts take EU law into account when interpreting domestic law. In this way, even EU law
that does not have direct effect can have indirect effect within domestic law. Thus, even when
Directives do not meet all of the conditions or 'direct effect' they can be important sources of
argument before a national court.