The relationship between international law and municipal law

1
The relationship between international law and
municipal law

• Lecture 14
• February 13

2
ASSIGNMENTS

• Monday, Feb.16
• Finish Whitney v. Robertson p.202
• US v. Belmont
• International Dispute Resolution
• Rainbow Warrior Case
• ILCs Draft Articles on State Responsibility
• Download and review
• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf
• Quiz-2 Feb.18
• Proposal due Febr.23
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson

3
ICJ Statute art. 38 Sources

• 1. International conventions - Treaties
  Example the European Convention for the
  Protection of Human Rights
• 2. International custom - Customary intl law
  (General intl law)
• A. State practice
• B. Opinio juris states consider it binding law
  not just doing out of courtesy.
• JUS COGENS
• 3. General principles of law recognized by
  civilized nations common legal maxims applied
  in all municipal legal systems
• - res judicata
• - EQUITY

4
More Sources of Intl law

• 4. Subsidiary sources
• 1. Judicial decisions (no stare decisis/
  doctrine of precedent a court has to follow
  earlier judicial decisions when the same points
  arise again in litigation)- See Art.59. Cases
  usually are taken into consideration.
• 2. Teachings by the most highly qualified
  publicists of the various nations
• 5. Additional sources (not mentioned in ICJ Stat.
  Art38)
• 1. Soft law UN General Assembly (UNGA)
  Resolutions
• (2. Intl administrative law governing the IGOs
  constitutional law of IGOs)

5
SOFT LAW

• U.N. General Assembly resolutions and
  declarations
• Political obligations
• UN Security Council resolutions compulsory
  powers when acting under Chapter VII of UN
  Charter.
• resolutions made by international conferences and
  many different international commissions and
  organizations
• ExampleResolutions by the United Nations
  Environment Programme (UNEP)

6
How can soft law become binding law?

• A. If it is used as the text for a treaty
• B. If a principle in a declaration (soft law) is
  practiced by states as a courtesy to one another
• C. If the principle in a declaration (soft
  law) is reflecting customary international law
• D. Both A. and C.
• E. All of the above

7
Relation Intl law municipal law

• Monist or dualist
• - Monism- intl law and the municipal law are
  considered to be one and the same legal system
  where international law is superior to municipal
  law.
• - Dualism one considers international law to be
  a separate legal system, you have to incorporate
  the international law into the municipal law.

8
US Hierarchy

• 1. US Const.
• 2.Treaties (self-executing) Federal laws -
  latter in time prevails
• 3. Executive agreements Executive agreements do
  not prevail over previously enacted federal
  statutes.
• 4. State laws

9
Case Foster Elam v. Neilson

• Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

10
Case Foster Elam v. Neilson

• 4. Issue Are self-executing treaties to be
  considered equivalent to an act of the
  legislature?
• Look at specific language

11
Case Missouri v. Holland

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

12
Case Missouri v. Holland

• A TREATY MAY OVERRIDE A STATES POWER
• States may not interfere with the conduct of US
  foreign relations.
• Case shows how potent is the power of treaties
  vis-à-vis states.
• Federal government must be able to conclude
  international agreements for all 50 states in
  common.
• Does not mean treaties can trump specific
  prohibitions or explicit states rights in the US
  Constitution

13
Case Whitney v. Robertson (1888)

• Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

14
Case Whitney v. Robertson

• Relationship TREATIES v. FEDERAL LAWS both are
  supreme law of the land according to the US
  Constitution
• the courts will always endeavor to construe them
  so as to give effect to both
• if the two are inconsistent, LATTER IN TIME
  PREVAILS, provided always the stipulation of the
  treaty on the subject is self-executing.