International Law VS Domestic Law | Slayerment
impact of international law on the legal systems of various States.' Yet, recent scientific concerning the relation of international to municipal law. All will quotes the decision of the Reichsgericht of October 26, ,. 85 RGZ , as a. this rigid approach to the relation of international law and domestic law. . c) In view of the above — it seems that — it is not unnecessary to quote the new. Restatement of the Law, Third, the Foreign Relations Law of the United States. . and elsewhere serve as resources for those researching domestic laws of all.
The rule of law is not satisfied by a sovereign-like entity wearing a gown or sitting in a wood-panelled chamber. At the municipal level, the ROL depends on a certain amount of organization, discipline, and orchestration among the forces of the state.
That's why informal enforcement by hue and cry is often seen as the antithesis of the ROL. It is not just because they get the wrong people, but because it is not properly regularized. But in less malign cases, Fuller was concerned about the difficulty in maintaining congruence between law on the books and various forms of official, administrative, and agency action — even with the best will in the world.
It is hard enough for a modern state, for example, to maintain congruence between law on the books and the action of the judiciary — and that is with a reasonably tightly organized governmental structure. It becomes much more difficult in the circumstances of modern international governance, when there is no overall entity responsible for the big picture. It seems paradoxical to say that we need the help of something like a sovereign to maintain the ROL.
But consider the following example. In the United States entered into a treaty obligation to ensure that Mexican nationals arrested for serious crimes in the US should have access to consular assistance. A tightly-constituted internal sovereign would not have the same embarrassment at the hands of a governmental sub-unit Texas in regard to its international obligations. But in this regard the United States has not properly formed itself into an entity that is capable of keeping its own promises.
Are ROL concerns applicable in the international realm? Might it not be the case that the absence of an international sovereign makes the ROL unnecessary?
We usually say that the point of the ROL is to protect individual values like liberty, dignity etc. Is there any need for that in IL, where i there is no all-powerful world government that the ROL needs to protect us all from, and ii the subjects of IL — sovereign states — are not vulnerable to power exercised against them or upon them at this level in the same way as natural individuals are vulnerable to the power of national governments.
If the ROL is conceived in the ordinary way as a check on governmental power, for the benefit of the freedom and dignity of individual persons, then it may be redundant in this context because there is no over-arching government to limit and there are no natural persons to protect. The whole problematic of the ROL seems to be avoided here.
Theories relating International Law and Municipal Law - irobot-roomba.info
The issue is that neither i nor ii appears to be present in this case. But appearances can be misleading.
In both i and iiit might be thought that we can resuscitate the application of ROL concerns. I have never been entirely happy with this formulation. Still, to the extent that there is anything in Raz's point, we might say that it is at least part of the purpose of the ROL in the international realm to protect the subjects of IL from dangers created by IL itself. Also, even if there is no world government, certainly there are sometimes powerful entities acting in the name of IL.
Just as natural individuals and firms within a nation-state 27 demand that the law and its application should be predictable, so one can imagine small nation-states rogue or otherwise demanding a degree of calculability in the forcible application of IL to them.
And then we are back with the concern discussed above in section 4: We know that, at the national level, the ROL inures to the benefit not just of natural persons but also of legal persons like corporations. They too are conceived to have certain interests in liberty — if not dignity 28 — that might be served by the ROL. If we acknowledge that the ROL might protect the interests of corporations, might we not also say that it is needed too in order to protect the interests of national sovereigns.
As I suggested a moment ago, national sovereigns or nation-states might have an interest in a calculable legal environment. The rule of law secures fixed points of reference by stabilizing social relationships and providing them with predictability. In this way, the international rule of law protects and enhances the freedom of various actors, creating a predictable environment in which actors can make meaningful choices.
More fundamentally, under both headings i and iiit may be a mistake to think that the ROL aims only to protect subjects from the state, government, or law itself. It also aims to protect them from one another, both from other individuals at the national level, and perhaps from other nation-states at the international level. I will say more about this in section 8. There is much more that needs to be said about the points that were raised in section 5, and really the rest of this article is devoted to a development of those points.
For example, more needs to be said about our response in section 5 to point iiviz. Our analysis so far may involve a misleading picture of IL, which treats individual sovereign states simply as subjects and considers only whether they need protections analogous to those needed by individuals at the level of national law.
Formally that picture may be correct, but if we are looking anyway behind the formalities — at the real concerns that underlie the ROL — we might want to develop a more realistic picture of what those real concerns are, or ought to be.
At least part of the reason we value IL is that it offers to improve the lives of real individuals, billions of them — men, women, and children — in the world. Formalistically, we say that the subjects of IL are national sovereigns and that the people of the world are rather like chattels belonging to the sovereigns. But nobody wants to be heard saying that sort of thing nowadays, at least outside the towers of narrow scholasticism.
The real purpose of IL and, in my view, of the ROL in the international realm is not the protection of sovereign states but the protection of the populations committed to their charge. People are not now regarded just as chattels of the sovereign powers, if they ever were.
Think of it this way. In the last resort, states are not the bearers of ultimate value. To use Kant's terminology, they are not ends in themselves, but means for the nurture, protection, and freedom of those who are ends in themselves. This is acknowledged in the philosophy of municipal law, when it is said that the state exists for the sake of its citizens, not the other way around.
I believe the same is true in the international arena, where states are recognized by IL as trustees for the people committed to their care. These millions are the ones who are likely to suffer if the international order is disrupted; they are the ones whose prosperity is secure when the international order is secure. Their well-being, not the well-being of sovereign nation-states, is the ultimate end of IL.
Nowhere is this clearer than in the role of IL in articulating a set of common standards for the protection of human rights. A pedant might see this as a departure from the essentially intergovernmental character of IL. In reality, though, this is a consummation of the concept that a government is a trustee for its people's interests: Having said all that and so emphaticallywe have to concede that it does not necessarily follow that applying ROL principles to IL is the best way of protecting the interests of the people whose rights and well-being are, in the end, the telos of IL.
That is surely an open question. For the formalistic picture is correct to the following extent: And that may or may not benefit the people whom they rule or whose well-being and rights are ultimately affected by their actions. For example, the ROL may be thought to require clarity in the rules that are applied to states in the international arena; it may be thought to prohibit the imposition of international obligations on states by norms whose meaning is controversial or unclear.
Some countries have been heard to complain that various human rights and humanitarian law provisions violate these ROL requirements. The ROL requires clarity; but the prohibitions on torture or on cruel, inhuman, and degrading treatment or punishment, or on outrages upon personal dignity, are unclear. But of course this may have a far-from-benign impact on the human persons affected by the actions of the government in question.
But there is more to be said about this example. First, although the government's insistence on the ROL may harm some people who need to be protected, some will suggest that it may actually protect others — e.
Theories relating International Law and Municipal Law
Some conceptions of the ROL place a premium on clear determinate rules; 38 but others embrace standards as well, maintaining that the argumentation framed and facilitated by a standard such as the prohibition on inhuman and degrading treatment is actually part of what we value when we talk about the ROL.
In the ROL tradition, determinacy and certainty are valued not just so people can know clearly what their obligations are, but also so that people can know clearly what protections they can rely on.
This has been very important, for example, in the national arena, in the relation between the ROL and property rights. People want to know where they stand and what property rights they can rely on, so that they can make their economic plans accordingly. What the ROL offers them is security. If their government regards itself as bound by norms that are clear, determinate, and transparent, then the people subject to them will at least know where they stand.
Of course, they may be disappointed that their government is not willing to accept more extensive obligations than this. But at least they will not be misled or given false hopes by vague declamations as to what their rights effectively are. This, in a way, is an application of A. Dicey's third heading of the ROL: In the last couple of sections, we have tried to look behind the formal position that nation-states or national sovereigns are the subjects of IL. We have tried to look behind that in order to get a sense of the real, as opposed to the formal, importance that the ROL may have in this sphere.
As we proceed with this realistic analysis, we may start moving towards the position, not only that states are not the ultimate subjects of IL, but that they are not really its subjects at all. We are held in the grip of a picture that sees the relationship between national sovereigns and IL as exactly analogous to the relationship between individual citizens and national law. But there are different kinds of subordination to law.
How to Distinguish International Law from Municipal Law: 13 Steps
Ordinary humans are subordinate to the law of the land; they are bound by it and they must comply with it. But also government agencies are subordinate to the law of the land. They too are bound by it, and in their procedures, deliberations, and actions and in the outcomes that they impose on those who in turn are subject to themthey are bound by the law of the land.
More specifically, they are bound by constitutional and administrative law. Which of these modes of subordination at the national level provides a better model for understanding the legal subordination of sovereigns at the international level? It is tempting to say that the individual model is appropriate. It is true that we are talking now about a government, but given that we have gone up a level, given that we are now in the international realm, it is often said that at the municipal level governments are just like individuals.
And so — the argument goes — a national government deserves the benefit of the same attitude toward the ROL in the international realm as individuals have in relation to the law of the land. But, patently, there are many respects in which national sovereigns at the international level are quite unlike natural individuals at the national level.
For one thing, they are already law-constituted entities. Considered in both its municipal aspect and in its international aspect, a state's sovereignty is an artificial construct, not something whose value — like that of the human individual — is to be assumed as a first principle of normative analysis.
At home, the state is a particular tissue of legal organization: In its international aspect, the sovereignty and sovereign freedom of the individual state are equally an artifact of IL. What its sovereignty is and what it amounts to is not given as a matter of the intrinsic value of its individuality, but determined by the rules of the international order.
It might show rather that it is best regarded on the model of a corporation in national lawwhich — as we noted in section 5 — are entitled to the benefit of the ROL in much the same way as private individuals.
But there are other aspects of the state in the international order which distinguish it from that model too. It takes us away from the conventional analogy to a new analogy. The new analogy works from the position that the nation-state is not just a subject of IL; it is both i a source and ii also an official of IL. Let me briefly explore each of these roles. Regulating a national sovereign in IL must therefore have some of the flavour of regulating a law-maker at the national level.
It might be more like regulating a municipal council passing by-laws or regulating a rule-making agency than like regulating a natural individual. Now, admittedly, private individuals are also sources of law at the national level: And we might say that this is the appropriate analogy, considering the amount of IL that arises out of treaties. It may be said that inasmuch as treaties are like contracts, sovereigns are like private contracting parties, and that — it might be said — is the best model for understanding the relation of sovereigns to IL.
But this analogy must be handled with great care. It makes most sense in regard to bilateral treaties that regulate particular aspects of trade or border relations, for example.
These treaties are most like contracts. This is certainly true of multilateral human rights treaties. Currently, speeches go back to Treaty actions go back to Department of State Dispatch. Bureau of Public Affairs: Weekly, ; Monthly, Updates on foreign relations in the U. Although the publication has ceased, the type of information provided in Dispatch is now published on the website of the Department of State. For years, this publication was the official record of foreign policy in the U. Government Publishing Office, The formal, historical record of the State Department's work.
The most recent volumes cover up to the early seventies.
An excellent guide to this publication over the years is available at the website of the Department of State. The website also includes summaries of volumes and the full-text of some volumes. Gales and Seaton, Published by the U. The American State Papers are available online at the Library of Congress website, which describes the publications as follows: Practice in International Law Over the years, an official digest of U.
These digests include editorial descriptions of international law in various areas as well as selections of official U. Published by the Department of State, authorship has changed over the years, and recent issues are published with the International Law Institute under the auspices of the Department of State, Office of the Legal Advisor. The Digest is one of the best sources for determining the official State Department's view of international law.
On its website, the State Department describes this publication as follows: Following is a list of these digests: United States Department of State. Government Printing Office, Digest Of International Law. Covering volumes published later in the series covered up to Whiteman, Marjorie M. Digest of International Law. D epartment of State, Office of the Legal Adviser, Department of State, Rovine, ; Eleanor C. McDowell, ; John A. Boyd, ; Marian L. Office of the Legal Adviser, Dept.
International Law Institute, The volumes were not published in sequence, but began publication in with the volume for Earlier volumes were published retrospectively to fill in the gap between and the Cumulative Digest covering Many documents cited in editions since are available on the website of the Department of State. The contents of the Digest, including selection of documents and preparation of editorial commentary, are entirely under the auspices of the Office of the Legal Advisor.
Cummins, and David P. Stewart, editors, published in Cummins and David P. Secondary Sources-United States Secondary sources are sometimes the best way to find descriptions of a state's practice in international law.
Also, they usually provide excellent citations to the documents themselves and sometimes excerpts or texts of the documents.Monism vs Dualism
Following is a list of secondary sources on the practice of the U. From the Editor's note of the first issue of this feature, "Criteria for the selection of materials may vary with experience, but the guiding purpose will be to select materials which reveal contemporary practice by the United States in invoking and applying principles, rules and procedures of international law or policies relating thereto.
United States Practice in International Law. Cambridge University Press, Volume 1 covers and volume 2 covers This is a very useful analysis of the United States in the arena of international law.
It includes extracts of some documents and extensive citations to others, both domestic and international. It includes helpful tables of U. An excellent and widely-respected statement on international law. Note-the foreword explicitly states that it is "in no sense an official document of the United States.
International Law as Law of the United States, 2nd ed. Carolina Academic Press, The first chapter of this book, "Customary International Law and Forms of Incorporation" is an excellent and recent overview of custom from a U. It includes a rich 'notes' section pages of citations to cases, statutes, secondary sources and more. Chiefly as Interpreted and Applied by the United States, 2nd rev. Chiefly as Interpreted and Applied by the United States.
Little, Brown, and Company, In two volumes in and three volumes inthese are excellent sources for historical research. Both include extensive footnotes.