UNIT VI INTERNATIONAL LAW AND NATIONAL LAW [sap |. Answer and discuss the questions. . Is international law true law? . How does international law differ from domestic law? What are the two main theories that explain the relationship between international law and domestic law? 1s international law incorporated into domestic law? . Do different countries incorporate and interpret international law in different ways? oo ws ~ What do you know about the implementation of international law in Ukraine/other countries? II. Comment on the following. 1. “The sovereignty of states must be subordinated to international law and international institutions.” — George Soros (Hungarian-American investor, business magnate, and philanthropist, born 1930). - “Who saves his country violates no law.” - Napoleon Bonaparte (Emperor of the French from 1804 until 1814, and again in 1815, 1769-1821). - “A nation’s strength is found not in the number of its laws but in the character of its people.” — James Montgomery Boice, Th.D. (Reformed theologian, Bible teacher, and pastor, 1938-2000). “The lack of international controls on the arms trade is making @ mockery of national arms laws.” — Phil Bloomer (British filmmaker, director, cinematographer, blogger, born 1971). 5. “The international community should support a system of laws to w -regularize intemational relations and maintain the peace in the same manner that law governs national order.” — Pope John Paul II (Pope from 1978 to 2005, 1920-2005). J rcanun iG I. Read and translate the text. Pay special attention to the expressions in bold. INTERNATIONAL LAW AND NATIONAL LAW” One of the most important areas of international law for the practicing lawyer is the question of its relationship with national law. [...] While it is generally true that international law is concemed with the legal relations between sovereign states and national law is concemed with the legal relations of individuals within a state, there is considerable overlap between the two legal systems. [...] Indeed, now that international law confers rights and obligations directly on individuals ~ as with human rights and war crimes — it is becoming even more important to know Precisely how the niles of one system will affect the decision-making process in the courts of another. [...] Theories Monism The monist theory supposes that international law and national law are simply two components of a single body of knowledge called “law”. ‘Law’ is seen as a single entity of which the ‘national’ and ‘international’ merely particular manifestations, Thus, sphere of influence and are concemed versions are both sets of rules operate in the same with the same. subject matter. Moreover, ver the same subject matter, there may be : international law may require one result another. If this happens in a concrete case, il. For example, if the international law of Person may be imprisoned without trial, a conflict between the two systems: and the provisions of national law —_—________ * Dixon M. Textbook on Intemational Law. Oxford University Press, 200: 7.33 ae 72.p,monist theory a national court would have to give effect to this even the 0 under O° sar rule of national law said otherwise. though a clear ‘although all monists suppose the superiority of international law in cases of conflict, there are several hacsheton explanations as to why this should pe so. Hans Kelsen, a noted legal theorist, sces the superiority of international Jaw as a direct consequence of his ‘basic norm’ of all law. This basic norm — or fundamental principle from which all law gains its validity ~ is that ‘states should behave as they customarily have behaved’. Kelsen is ‘monist-positivist’ in that international law derives from the practice of states and national law derives from the state as established in international law. International law is, therefore, a ‘higher’ legal order. In contrast, Hersch Lauterpacht, once a judge of the ICJ, sees international law as superior because it offers the best guarantee for the human rights of individuals. Indeed, the ‘state’ itself is seen as a collection of individuals, rather than a legal entity in its own right. International law is said to control or override national law because the latter cannot be trusted to protect individuals and, more often than not, because it is used to persecute them. International law prevails because it is the guarantor of individual liberty, and clearly this echoes the current thinking of many intemational human rights lawyers. A similar view sees the relationship between international law and national law as monist, with international law being relatively superior, but with both systems subject to a higher legal order — the law of nature. This is the ‘monist-naturalist’ theory and it roots the validity of all law in natural law. [...] According to this view there is ahierarchy of legal orders, with natural law at the summit, followed by international law, followed by national law. Obviously, these diverse opinions about why international law should take priority over national law cannot all be correct. They are part of the wider debate about the validity of international law as a ‘legal’ system. [...] However, what they have in common is the basic monist tenet that international law and national law are part of the same hierarchical legal order. Consequently, norms of international and national law must hed ranked in order of priority should a conflict occur in a concrete case. In this sense, international law is superior. In practice, this means that the legal institutions of a state, such as its courts and legislature, should ensure that national rights -117-and obligations conform to international law. More importantly, if they do not, the national court should give effect to international law and not its own domestic law. Dualism Dualism denies that international law and national law operate in the same sphere, although it does accept that they deal with the same subject matter. For dualists, such as Triepel, international law regulates the relations between states whereas national law regulates the rights and obligations of individuals within states. International law deals with that subject matter on the international plane whereas national law deals with the subject matter internally. Consequently, if an individual is denied a right in a national court which is guaranteed under international law, the national court will apply the national law. Likewise, action by a state that might be unlawful under international law may nevertheless attract validity and protection in national law if there is a clear rule of national law to that effect. [...] The state itself may be in breach of its obligations on the international plane, but that is amatter for an international court. There are, in other words, dual legal systems operating simultaneously in respect of the same rights and obligations and the national court should not concern itself ‘with the meaning of an international instrument operating purely on the plane of international law’ — Simon Brown LI in Campaign for Nuclear Disarmament v. Prime Minister of the United Kingdom [2002] EWHC 2777 (QB). The effect of such a doctrine is that a government may be behaving perfectly lawfully within its own territory, even though its conduct may entail international responsibility. [...] For the present, however, the impact of the dualist theory is that international law cannot invalidate domestic law, or ¢ Versa, and rights and obligations arising under one system cannot automatically be transferred to the other. This theory does accept that the systems can come into conflict — because they deal with the same subject matter — but recognises that each system applies its own law unless the rules of that system say otherwise. ees courts apply international law and national courts apply national law. Different subject matter Both monism and dualism accept that international law and national law -11a-same subject matter; that they are in fact concerned with the same gel with the ‘ters, Monism simply accepts that the international rule takes sabstantive ma dualism insists that each system deals with the matter in its prio we) view, promoted by Fitzmaurice and Anziloti, denies that own. wa ‘ jaw and national law ever operate in the same sphere or that they internation ed with the same subject matter. According to this view, the a cn petween international law and national law is like the relationship Pee slaty oa Preneh Wa Sune pee eae aT a ii of law. It may be that the ‘obligations’ of each system come into conflict - as where national law allows imprisonment without trial and intemational law does not — but then which obligation is to prevail is to be settled by the ‘conflict of laws’ rules of the particular court. So, mules of national law may or may not say that international law is to prevail, but the solution is still dictated by national law. Essentially, this is a less theoretical approach to the problem of the relationship of international and national law. Each system of law is seen as completely independent of the other because it is argued that this is how the systems relate in practice. If obligations do conflict, national courts give effect ‘0 national law obligations, unless a national rule says otherwise, and intemational law gives effect to international obligations, unless an intemational rule says otherwise. It will be appreciated that in this regard the third approach is similar to the dualist theory, and in terms of practical Consequences there is little difference between the two. The distinction lies Primarily in the theoretical point that this is a theory of ‘coordination’ (the two systems do not conflict as systems), whereas both monism and dualism are theories of ‘confrontation’. : These theories have occupied the minds of legal philosophers ever since itemnational law emerged as a coherent body of rules that could affect National legal systems, IL. Answer the questions. internati lay What are the theories of relation between national and international aw 2. What is the concept of monism?3. What is the concept of dualism? 4, How can the approach of Hans Kelsen be defined? 5. How did Hersch Lauterpacht see international law? IL. Complete the following sentences. Use the required information from the text above. 1. There is considerable between the two legal systems: national and international law. The monist theory supposes that international law and national law are simply two of a single body of knowledge called ‘law’. . Both sets of rules in the same sphere of influence and are concemed with the same 4. Kelsen is ‘ r N w in that international law derives from the practice of states and national law derives from the state as established in international law. 5. International law prevails because it is the of individual liberty. 6. The national court should to international law and not its own domestic law. IV. Decide which statement is TRUE and which is FALSE. Use the required information from the text above and correct the false statements. 1. International law is concerned with the legal relations between colonial states. 2. Kelsen is ‘dualist-positivist’ in that intemational law derives from the practice of states and national law derives from the state as established in international law. 3. The diverse opinions about why intemational law should take priority over national law are part of the wider debate about the validity of international law as a ‘legal’ system. 4, The state itself may be in breach of its obligations on the international plane, but that is a matter for an international criminal court. 5. International law cannot invalidate domestic law, or vice versa,LANGUAGE FOCUS 1 Bind v: 1. impose a legal or contractual obligation on (A party who signs adocument will normally be bound by its terms), 2. (bind oneself) formal make a contractual or enforceable undertaking (The government cannot bind itself as to the form of subsequent legislation). 3s (of a court of law) require (someone) to fulfill an obligation, typically by paying a sum of money as surety (He was bound over to keep the peace by magistrates). Bind x: 1. a problematical situation (He is in a Political bind over the capital punishment issue); 2. a statutory constraint (The moral bind of the law). Binding ad): (of an agreement or promise) involving an obligation that cannot be broken (Business agreements are intended to be legally binding). Synonyms: irrevocable, unalterable, inescapable, unbreakable, contractual, compulsory, obligatory, mandatory, incumbent. . Apply v: 1. make a formal application or request (You need to apply to the local authority for a grant); 2. bring or put into operation or use (The oil industry has failed to apply appropriate standards of care); 3. be applicable or relevant (Prices do not apply to public holiday periods); 4. put oneself forward formally as a candidate for a job (She had applied for a number of positions). Application n: 1. a formal request to an authority (4n application for leave, licenses are available on application, an application form); 2. the action of putting something into operation (The application of general rules to particular cases). ‘Applicant n: a person who applies, as for a job, grant, support, ete.; candidate. ‘ Applicable adj: being appropriate or relevant; able to be applied; fitting. 3, Subject n: 1. a person or thing that is be v eing discussed, described, or» w . Throughout their detention they were allegedly . The dealt with; 2. the part of a proposition about which a statement is made; 3. a member of a state other than its ruler, especially one owing allegiance to a monarch or other supreme ruler. Subject to adj: 1. dependent or conditional upon (The proposed merger is subject to the approval of the shareholders); 2. under the authority of (Ministers are subject to the laws of the land). Subject to adv: conditionally upon (Subject to the EC’s agreement, we intend to set up an enterprise zone in the area). Subject v: 1. (subject someone/thing to) cause or force someone or something to undergo (A particular experience or form of treatment, pically an unwelcome or unpleasant one); 2. bring (a person or country) under one’s control or jurisdiction, typically by using force (The city had been subjected to Macedonian rule). . Fill in the gaps. Use the above words and expressions. a court ruling, any assets derived from activities related to these offences shall be confiscated. for compensation must initially be made to the body bearing responsibility for compensation. No agency is legally to disseminate the data, must be independent and with good interpersonal and teamwork skill, various forms of torture, further guidance by the Legal and Technical Commission, itis considered that these areas are adequ ; ate for effective exploration, commitments with regard to cross. commercial presence may need domestic services frameworks. border trade and to follow measures to strengthen sectors and establish appropriate regulatory is binding except that the altemative is indicated in the regulation, maintains that the vessel was conducting scientific -122-research under a valid permit issued by Spain and that the detention is in violation of the Convention. 9, The above-mentioned acts of the European Union are legally upon member States of the European Union, 10.In issues regarding inherence and wills, foreign citizens are to the laws of their own countries, IL, standards obviously derive in the main from the protection of the civilian population under the Law of Armed Conflict. 12. To fulfil the obligations arising from the Money Laundering Regulations, the person is to employ a reporting officer. 13. The government cannot itself as to the form of subsequent legislation. 14. The was dismissed by the Court of second instance. Il, Study the use of the phrases with ‘VALIDITY’ and give their Ukrainian equivalents. validity in law validity of statute validity of treaty validity of adopted decisions validity of an argument validity of an article validity of a Charter validity of a conclusion validity of implementing protocols validity of an objection validity of the protocol confer upon the agreement its true international validity dispute the validity of a document terminate the validity of the convention necessary validity (of a treaty) voluntary validity (of a treaty)essential validity extrinsic (formal) validity intrinsic validity questionable validity temporal validity IM. Translate into English. O6rpyxrosanicrs aprymenty, hopManbHa GHHHiCTE, 4HEBICT yromH 70 MesHoro Yacy, YMHHicTE/OpHAMIHa cua ForoBopy, WpHAMWHa cua MpuiinaTux pines, Hanaparu yroni suxHocTi B MixHaposEMx crmpapax, 3akonnicre/mpaswsbHicts crarri (aKOrocb OKYMeHTY), IPHIMMAKTH sito Konsennii, nificnicre/iopuawnia cuna craryry, o6rpyHTosanicrs BUCHOBKy, fix poGosHx nporoKonis, o6rpyHTonanicrs sarrepeyenus, suanicro/opnawana cura mpotoxoxy, nigiasat cymnisy/ocnoprosara 4HUHICTS JOKYMeRTAa. IV. Translate the following sentences into Ukrainian, 1. The Declaration on a Culture of Peace, adopted by the Assembly seven years ago, set out a number of important principles that retain their full validity today. 2. A reservation that does not meet the conditions of formal validity and permissibility set out in Parts 2 and 3 of the Guide to Practice is null and void, and therefore devoid of legal effect, Treaties need to keep pace with changing reality, whether political or technological, in order to retain validity. 4. The President approved the Protocol on 24 August 2002 extending the validity of the agreement. The visa fee does not depend on the validity period of the visa. At the same time, the binding nature of unilateral acts was subject to conditions of validity and causes of invalidity, Termination of the present Agreement shall not affect the execution of measures commenced within the validity period of the present aad am 2 Agreement. . Exclusion of the bank from the Register shall not terminate the =124- 2validity of bank guarantees issued to it and accepted by customs authorities, and shall not release it from the Tesponsibility for non- fulfillment or improper fulfilment of the terms of such bank guarantees. 9, New draft article 5: Invalidity of unilateral acts, 10. Of course, from the standpoint of Teciptocity, the Salvadoran State also accords fill validity to the unilateral acts of other States, provided that they are performed with due formality and acquire authenticity by being expressed by an authority with full powers, V. Match the two columns, and then make sentences using the collocations. _ 1. human rights a. matter 2. monist b. effect 3. national c. lawyer 4. subject d. of laws 5. conflict e. law 6. give £ oftules 7. body g. tenet VL. Fill in the blanks with: in, of, upon, to, into, within, therein, by, between, under, while, where necessary. cp International Law is the law which governs 1. the relations of sovereign independent States inter se. Municipal law or State law or national Jaw is the law of a State or a country and 2. that Tespect is opposed to International Law which consists 3. Tules which civilized States consider as binding 4. them in their mutual relations. The former although directly addressed 5.__ the States as corporate bodies is as well applicable 6.__-_—_— individuals for States are only groups of individuals. *According to this theory there is the delegation of a right to every State to decide for itself when the provisions 7. a treaty orconvention are to come 8. effect and in what manner they are to be incorporated 9. the law of the land or municipal law. The sources of Municipal Law are customs grown up 10. the boundaries of the State concerned and statutes enacted ll. while the sources of International Law are customs grown up 12, the Family of Nations and law making treaties concluded 13 its members. 14. the second place Municipal Laws regulate relations 15. the individuals 16. the sway 17. a State or 18. the individuals and the State 19. International Law regulates relations 20. the member States of the Family of Nations. VIL. Translate into English. 1. 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