André Nollkaemper
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199236671
- eISBN:
- 9780191725234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236671.003.0008
- Subject:
- Law, Public International Law
This chapter systematizes the relevant principles and patterns in domestic case-law providing for reparation for violations of international law. The chapter advances essentially three arguments. ...
More
This chapter systematizes the relevant principles and patterns in domestic case-law providing for reparation for violations of international law. The chapter advances essentially three arguments. First, in certain circumstances domestic courts may find that a breach by the forum state of an international obligation constitutes an internationally wrongful act. Secondly, principles of international reparation may be applicable to such a finding. Thirdly, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect, even though international law leaves states and their courts a lot of leeway in applying principles of international responsibility in a specific domestic legal and factual context.Less
This chapter systematizes the relevant principles and patterns in domestic case-law providing for reparation for violations of international law. The chapter advances essentially three arguments. First, in certain circumstances domestic courts may find that a breach by the forum state of an international obligation constitutes an internationally wrongful act. Secondly, principles of international reparation may be applicable to such a finding. Thirdly, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect, even though international law leaves states and their courts a lot of leeway in applying principles of international responsibility in a specific domestic legal and factual context.
Karen J. Alter
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691154749
- eISBN:
- 9781400848683
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691154749.003.0004
- Subject:
- Political Science, International Relations and Politics
This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has ...
More
This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has increasingly become embedded into domestic law and institutions. Although the same fundamental motive drives delegation to courts across time, key historical events have been needed to increase bottom-up demands and make governments and legislatures open to accepting greater international judicial oversight. At the end of World War II, governments were able to reject proposals for compulsory international judicial oversight of their behavior. Changes in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad.Less
This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has increasingly become embedded into domestic law and institutions. Although the same fundamental motive drives delegation to courts across time, key historical events have been needed to increase bottom-up demands and make governments and legislatures open to accepting greater international judicial oversight. At the end of World War II, governments were able to reject proposals for compulsory international judicial oversight of their behavior. Changes in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad.
Karel Kurst-Swanger and Jacqueline L. Petcosky
- Published in print:
- 2003
- Published Online:
- January 2009
- ISBN:
- 9780195165180
- eISBN:
- 9780199864966
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195165180.003.0004
- Subject:
- Social Work, Children and Families, Crime and Justice
This chapter explores the unique characteristics of violence between intimate partners. It begins with an overview of the trends that have guided the salience of domestic violence intervention ...
More
This chapter explores the unique characteristics of violence between intimate partners. It begins with an overview of the trends that have guided the salience of domestic violence intervention throughout history. The evolution of intervention strategies are discussed, including the institutionalization of advocacy and services for victims, police and court responses, and legislative reform. The chapter examines abuse in intimate relationships in more depth, focusing on special populations such as gay and lesbian couples, elderly couples, and men as victims. It also reviews the different forms of abuse often found in intimate partner relationships such as emotional, physical, and sexual abuse; stalking, homicide, and parental kidnapping. It concludes with a discussion of some of the key consequences of intimate partner violence including: poverty, homelessness, physical and psychological injury, and the impact such abuse has on children.Less
This chapter explores the unique characteristics of violence between intimate partners. It begins with an overview of the trends that have guided the salience of domestic violence intervention throughout history. The evolution of intervention strategies are discussed, including the institutionalization of advocacy and services for victims, police and court responses, and legislative reform. The chapter examines abuse in intimate relationships in more depth, focusing on special populations such as gay and lesbian couples, elderly couples, and men as victims. It also reviews the different forms of abuse often found in intimate partner relationships such as emotional, physical, and sexual abuse; stalking, homicide, and parental kidnapping. It concludes with a discussion of some of the key consequences of intimate partner violence including: poverty, homelessness, physical and psychological injury, and the impact such abuse has on children.
Magdalena Forowicz
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592678
- eISBN:
- 9780191595646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592678.003.0008
- Subject:
- Law, Human Rights and Immigration
This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very ...
More
This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.Less
This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.
Stéphane Beaulac and John H. Currie
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0005
- Subject:
- Law, Public International Law
With two exceptions, Canada's written Constitution is silent on international agreements and treaties. This is because Canada was a British Dominion rather than a sovereign state at the time of ...
More
With two exceptions, Canada's written Constitution is silent on international agreements and treaties. This is because Canada was a British Dominion rather than a sovereign state at the time of Canadian Confederation in 1867, and its foreign affairs were conducted on its behalf by the Imperial British government in the years immediately following Confederation. There are no explicit references to customary international law or the law of nations in Canada's written Constitution. However, section 11(g) of the Canadian Charter of Rights and Freedoms implicitly references customary international law when it refers to offences at ‘international law’. Further, the preamble to the Constitution Act 1867 provides that Canada shall have ‘a Constitution similar in principle to that of the United Kingdom’. This has generally been interpreted to mean that customary international law has a status in Canadian law similar to that which it enjoys in British law.Less
With two exceptions, Canada's written Constitution is silent on international agreements and treaties. This is because Canada was a British Dominion rather than a sovereign state at the time of Canadian Confederation in 1867, and its foreign affairs were conducted on its behalf by the Imperial British government in the years immediately following Confederation. There are no explicit references to customary international law or the law of nations in Canada's written Constitution. However, section 11(g) of the Canadian Charter of Rights and Freedoms implicitly references customary international law when it refers to offences at ‘international law’. Further, the preamble to the Constitution Act 1867 provides that Canada shall have ‘a Constitution similar in principle to that of the United Kingdom’. This has generally been interpreted to mean that customary international law has a status in Canadian law similar to that which it enjoys in British law.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0005
- Subject:
- Law, Human Rights and Immigration
Well beyond the confines of the traditional and sterile polemics between monism and dualism, the interaction between international law and domestic law has been asserted in the protection of human ...
More
Well beyond the confines of the traditional and sterile polemics between monism and dualism, the interaction between international law and domestic law has been asserted in the protection of human rights. Human rights treaties themselves confer a relevant role to national tribunals. The application of the rule of exhaustion of local remedies, in the present domain of protection, bears witness of that interaction.Thus, in approaching the States' duty to provide effective local remedies and the individual's duty to have recourse to them, the emphasis lies on redress, on the realization of justice. Such is the rationale of the local remedies rule in human rights protection. State responsibility itself comes to be approached beyond the so-called subsidiarity of international proceedings.Less
Well beyond the confines of the traditional and sterile polemics between monism and dualism, the interaction between international law and domestic law has been asserted in the protection of human rights. Human rights treaties themselves confer a relevant role to national tribunals. The application of the rule of exhaustion of local remedies, in the present domain of protection, bears witness of that interaction.Thus, in approaching the States' duty to provide effective local remedies and the individual's duty to have recourse to them, the emphasis lies on redress, on the realization of justice. Such is the rationale of the local remedies rule in human rights protection. State responsibility itself comes to be approached beyond the so-called subsidiarity of international proceedings.
Otto Kircheimer
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691134130
- eISBN:
- 9781400846467
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691134130.003.0030
- Subject:
- History, Military History
This chapter discusses the criminal responsibility of the Nazis for their violations of German domestic law, including the suppression of labor organizations and political parties. It first considers ...
More
This chapter discusses the criminal responsibility of the Nazis for their violations of German domestic law, including the suppression of labor organizations and political parties. It first considers the expected plea by the Nazi Defense that the war crimes of which the prisoners are accused were in fact authorized by the laws of the Third Reich. It then shows how—and under what pretexts—the Nazis went about the organization of their system of terror. In particular, it emphasizes the role of the police as an instrument of repression and notes that the opposition parties were driven underground, the elections were rigged, and the trade unions were taken over. The chapter examines two types of agencies employed by Nazi Germany: the “legal terror,” which operated by way of the courts and the application of Nazi laws, and the police and organizational terror, which applied force directly.Less
This chapter discusses the criminal responsibility of the Nazis for their violations of German domestic law, including the suppression of labor organizations and political parties. It first considers the expected plea by the Nazi Defense that the war crimes of which the prisoners are accused were in fact authorized by the laws of the Third Reich. It then shows how—and under what pretexts—the Nazis went about the organization of their system of terror. In particular, it emphasizes the role of the police as an instrument of repression and notes that the opposition parties were driven underground, the elections were rigged, and the trade unions were taken over. The chapter examines two types of agencies employed by Nazi Germany: the “legal terror,” which operated by way of the courts and the application of Nazi laws, and the police and organizational terror, which applied force directly.
Giuseppe Cataldi
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0013
- Subject:
- Law, Public International Law
In the Italian legal system, treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. Important indications on the relationship between treaties ...
More
In the Italian legal system, treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. Important indications on the relationship between treaties ratified by Italy and the constitutional order are found in the Constitution, even though the references are to distinguish the legal discipline in force before and after the 2001 constitutional reform. Domestic courts are formally and substantially free from any deference to the views of the government or legislature in interpreting a treaty provision. In the Italian Constitution there is no rule on the power of the legislature or the government to formulate a reservation to a treaty. Thus, in practice, the competence to formulate reservations is exercised by the government and by the Parliament. International customary law is automatically incorporated into the Italian legal system by a rule of the Italian Constitution, and it assumes the same force of constitutional law.Less
In the Italian legal system, treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. Important indications on the relationship between treaties ratified by Italy and the constitutional order are found in the Constitution, even though the references are to distinguish the legal discipline in force before and after the 2001 constitutional reform. Domestic courts are formally and substantially free from any deference to the views of the government or legislature in interpreting a treaty provision. In the Italian Constitution there is no rule on the power of the legislature or the government to formulate a reservation to a treaty. Thus, in practice, the competence to formulate reservations is exercised by the government and by the Parliament. International customary law is automatically incorporated into the Italian legal system by a rule of the Italian Constitution, and it assumes the same force of constitutional law.
Andrew T. Guzman (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.001.0001
- Subject:
- Law, Public International Law
This book illustrates how domestic competition law policies intersect with the realities of international business. It offers a discussion of what might be done to improve the way in which ...
More
This book illustrates how domestic competition law policies intersect with the realities of international business. It offers a discussion of what might be done to improve the way in which cross-border business is handled by competition policy. The first part of the book provides country reports written by local experts explaining the extraterritorial reach of national laws. Each country report summarizes existing domestic law and examines the conditions under which each country applies its substantive competition laws to conduct that takes place abroad. These chapters also address the question of comity, meaning the circumstances in which a country would decline to exercise jurisdiction on the grounds that another state is the more appropriate jurisdiction. Finally, the extent of cooperation between the local government and other states is examined. In conducting cross-border business activity, these reports provide a sense of the multiple jurisdictions that a business must consider within the scope of how laws from various states interact and overlap. The countries covered include: Australia, Brazil, Canada, China, the Europen Union, Israel, Japan, Singapore, and the United States. The second part of the book offers several proposals for effectively managing these overlapping competition policy regimes.Less
This book illustrates how domestic competition law policies intersect with the realities of international business. It offers a discussion of what might be done to improve the way in which cross-border business is handled by competition policy. The first part of the book provides country reports written by local experts explaining the extraterritorial reach of national laws. Each country report summarizes existing domestic law and examines the conditions under which each country applies its substantive competition laws to conduct that takes place abroad. These chapters also address the question of comity, meaning the circumstances in which a country would decline to exercise jurisdiction on the grounds that another state is the more appropriate jurisdiction. Finally, the extent of cooperation between the local government and other states is examined. In conducting cross-border business activity, these reports provide a sense of the multiple jurisdictions that a business must consider within the scope of how laws from various states interact and overlap. The countries covered include: Australia, Brazil, Canada, China, the Europen Union, Israel, Japan, Singapore, and the United States. The second part of the book offers several proposals for effectively managing these overlapping competition policy regimes.
Dinah Shelton
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0001
- Subject:
- Law, Public International Law
This introductory chapter first sets out the purpose of the book, which is to demonstrate how developments in international law have in turn influenced domestic legal systems, especially new ...
More
This introductory chapter first sets out the purpose of the book, which is to demonstrate how developments in international law have in turn influenced domestic legal systems, especially new constitutions and constitutional law. It then considers the debate over whether the international and domestic legal orders constitute a single system (monism) or whether each domestic legal system rests self-contained, separate from others and from the international system (dualism). It describes how the place of international law in the domestic legal system depends on the source of the international law in question: whether it is a treaty, customary international law, a general principle of law, or derives from the decision of an international organization. The chapter then discusses treaties and domestic legal systems, the use of international law to inform domestic law; and federal systems.Less
This introductory chapter first sets out the purpose of the book, which is to demonstrate how developments in international law have in turn influenced domestic legal systems, especially new constitutions and constitutional law. It then considers the debate over whether the international and domestic legal orders constitute a single system (monism) or whether each domestic legal system rests self-contained, separate from others and from the international system (dualism). It describes how the place of international law in the domestic legal system depends on the source of the international law in question: whether it is a treaty, customary international law, a general principle of law, or derives from the decision of an international organization. The chapter then discusses treaties and domestic legal systems, the use of international law to inform domestic law; and federal systems.
Mario Mendez
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199606610
- eISBN:
- 9780191741906
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606610.003.0002
- Subject:
- Law, EU Law, Private International Law
This chapter explores the general stance of international law and domestic legal orders regarding the legal effects of treaties in the domestic legal arena. It shows that international law continues ...
More
This chapter explores the general stance of international law and domestic legal orders regarding the legal effects of treaties in the domestic legal arena. It shows that international law continues to have remarkably little to say on the issue of the domestic legal effects of treaties, with the basic rule remaining in place that States are free to determine how they meet their treaty obligations. And States remain reluctant to draft treaties that restrict this free rein and that seek expressly to accord domestic courts a judicial enforcement role. The chapter is organized as follows. The first section addresses the requirements imposed by international law as to the legal effects to be accorded to treaties in domestic legal orders. The second looks at the basic dichotomy in approach at the domestic constitutional level to giving legal effect to treaties. The final section briefly revisits two opposing theoretical constructs used to conceptualize the legal effects accorded to international law (particularly as employed in the treaty setting) before offering some more general reflections pertaining to the role of domestic courts in treaty enforcement.Less
This chapter explores the general stance of international law and domestic legal orders regarding the legal effects of treaties in the domestic legal arena. It shows that international law continues to have remarkably little to say on the issue of the domestic legal effects of treaties, with the basic rule remaining in place that States are free to determine how they meet their treaty obligations. And States remain reluctant to draft treaties that restrict this free rein and that seek expressly to accord domestic courts a judicial enforcement role. The chapter is organized as follows. The first section addresses the requirements imposed by international law as to the legal effects to be accorded to treaties in domestic legal orders. The second looks at the basic dichotomy in approach at the domestic constitutional level to giving legal effect to treaties. The final section briefly revisits two opposing theoretical constructs used to conceptualize the legal effects accorded to international law (particularly as employed in the treaty setting) before offering some more general reflections pertaining to the role of domestic courts in treaty enforcement.
Janne Nijman and André Nollkaemper
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231942
- eISBN:
- 9780191716140
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231942.003.0001
- Subject:
- Law, Public International Law
This introductory chapter begins with a discussion of the aims of the book, which is to contribute to the understanding of one of the most pressing issues of modern international law: the ...
More
This introductory chapter begins with a discussion of the aims of the book, which is to contribute to the understanding of one of the most pressing issues of modern international law: the disconnection, or ‘divide’, between the international legal order, on the one hand, and the legal orders of over 190 sovereign states on the other. It then clarifies the ‘theoretical’ nature of the perspectives contained in the book. It briefly reviews the classic positions of monism and dualism. Understanding the context of the emergence of monism in response to 19th century dualism will provide an essential yardstick for assessing modern perspectives on the divide between international and domestic law. It also reviews current legal developments, which challenge the discipline of international law to rethink these old theories. An overview of the subsequent chapters is presented.Less
This introductory chapter begins with a discussion of the aims of the book, which is to contribute to the understanding of one of the most pressing issues of modern international law: the disconnection, or ‘divide’, between the international legal order, on the one hand, and the legal orders of over 190 sovereign states on the other. It then clarifies the ‘theoretical’ nature of the perspectives contained in the book. It briefly reviews the classic positions of monism and dualism. Understanding the context of the emergence of monism in response to 19th century dualism will provide an essential yardstick for assessing modern perspectives on the divide between international and domestic law. It also reviews current legal developments, which challenge the discipline of international law to rethink these old theories. An overview of the subsequent chapters is presented.
Michael Hirst
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199245390
- eISBN:
- 9780191715013
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199245390.001.0001
- Subject:
- Law, Criminal Law and Criminology
In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, ...
More
In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, Internet crime, and international terrorism. Against that background, this important new work examines some fundamental, but hitherto neglected, issues of domestic criminal law. Where, and to whom, does that law apply? When, in particular, can national law properly concern itself with conduct that takes place wholly or partly abroad? Should it primarily be concerned with delinquent conduct, or with the consequences of that conduct, which may take effect in a different part of the world? On what basis can a person who is not a UK national be regarded as offending against the law if he is not within the territories governed by that law? What is the position under international law? And how are the precise boundaries (especially the adjacent maritime boundaries) of a nation's criminal law defined? This book examines the territorial and extraterritorial application of the criminal law, identifying many defects, lacunae, and historical accidents; and considers possible ways in which some at least of the problems that beset these areas of law might be alleviated.Less
In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, Internet crime, and international terrorism. Against that background, this important new work examines some fundamental, but hitherto neglected, issues of domestic criminal law. Where, and to whom, does that law apply? When, in particular, can national law properly concern itself with conduct that takes place wholly or partly abroad? Should it primarily be concerned with delinquent conduct, or with the consequences of that conduct, which may take effect in a different part of the world? On what basis can a person who is not a UK national be regarded as offending against the law if he is not within the territories governed by that law? What is the position under international law? And how are the precise boundaries (especially the adjacent maritime boundaries) of a nation's criminal law defined? This book examines the territorial and extraterritorial application of the criminal law, identifying many defects, lacunae, and historical accidents; and considers possible ways in which some at least of the problems that beset these areas of law might be alleviated.
Mark Weston Janis
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579341
- eISBN:
- 9780191722653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579341.003.0010
- Subject:
- Law, Public International Law, Legal History
We have already met American federalism. States rights and slavery, our ‘peculiar institution,’ tore the Union apart in the 19th century, and engendered an intellectual and legal battle over the ...
More
We have already met American federalism. States rights and slavery, our ‘peculiar institution,’ tore the Union apart in the 19th century, and engendered an intellectual and legal battle over the proper role of international and foreign law in US law. After the Civil War, states' rights and American exceptionalism, still largely about race relations, again prompted a fierce debate about the appropriate impact of international and foreign law on US law. This chapter returns to the theme with Missouri v Holland, a still controversial decision of the Supreme Court rendered in 1920. Just at the time when Wilson's League of Nations was dividing Americans pro and con on the wisdom of relying on international law and institutions in US foreign affairs, Missouri divided them about employing international law in our domestic law.Less
We have already met American federalism. States rights and slavery, our ‘peculiar institution,’ tore the Union apart in the 19th century, and engendered an intellectual and legal battle over the proper role of international and foreign law in US law. After the Civil War, states' rights and American exceptionalism, still largely about race relations, again prompted a fierce debate about the appropriate impact of international and foreign law on US law. This chapter returns to the theme with Missouri v Holland, a still controversial decision of the Supreme Court rendered in 1920. Just at the time when Wilson's League of Nations was dividing Americans pro and con on the wisdom of relying on international law and institutions in US foreign affairs, Missouri divided them about employing international law in our domestic law.
Eva Lomnicka
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0015
- Subject:
- Law, EU Law
This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the ...
More
This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.Less
This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.
Jerry Z. Li and Sanzhuan Guo
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0006
- Subject:
- Law, Public International Law
The Chinese Constitution is silent on the domestic status of treaties, customary international law, and other international rules. Treaties to which China is a party are generally regarded as a part ...
More
The Chinese Constitution is silent on the domestic status of treaties, customary international law, and other international rules. Treaties to which China is a party are generally regarded as a part of Chinese law. Chinese domestic legislation may be passed to implement treaties, and Chinese courts may directly apply treaties in some areas such as civil and commercial areas. However, not all treaties are directly applied by Chinese courts without transformation. International human rights treaties are good examples of this. International treaties should have a lower legal status than the Constitution and the basic laws, but may have the same legal force as the laws passed by the National People's Congress' Standing Committee, administrative regulations, or ministerial rules, depending on their concerned making procedures.Less
The Chinese Constitution is silent on the domestic status of treaties, customary international law, and other international rules. Treaties to which China is a party are generally regarded as a part of Chinese law. Chinese domestic legislation may be passed to implement treaties, and Chinese courts may directly apply treaties in some areas such as civil and commercial areas. However, not all treaties are directly applied by Chinese courts without transformation. International human rights treaties are good examples of this. International treaties should have a lower legal status than the Constitution and the basic laws, but may have the same legal force as the laws passed by the National People's Congress' Standing Committee, administrative regulations, or ministerial rules, depending on their concerned making procedures.
Mark A. Pollack and Gregory C. Shaffer
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199237289
- eISBN:
- 9780191696732
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199237289.003.0001
- Subject:
- Political Science, International Relations and Politics
This introductory chapter begins with a description of persistent regulatory differences between the United States and the European Union with regards to the regulation of genetically modified ...
More
This introductory chapter begins with a description of persistent regulatory differences between the United States and the European Union with regards to the regulation of genetically modified organisms (GMOs). It then sets out the purpose of the book, which is to investigate the challenges — the obstacles to reconciling regulatory differences through international cooperation, and what happens when cooperation fails — through the prism of the US-European dispute over the regulation of agricultural biotechnology or GMOs. The book addresses the dynamic and reciprocal interactions of domestic law and politics, transgovernmental and transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. An overview of the subsequent chapters is presented.Less
This introductory chapter begins with a description of persistent regulatory differences between the United States and the European Union with regards to the regulation of genetically modified organisms (GMOs). It then sets out the purpose of the book, which is to investigate the challenges — the obstacles to reconciling regulatory differences through international cooperation, and what happens when cooperation fails — through the prism of the US-European dispute over the regulation of agricultural biotechnology or GMOs. The book addresses the dynamic and reciprocal interactions of domestic law and politics, transgovernmental and transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. An overview of the subsequent chapters is presented.
Elisabeth Handl-Petz
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0003
- Subject:
- Law, Public International Law
Austria entered the European Union in 1995 and is a member of the United Nations. It participates, inter alia, in the Organization for Economic Co-operation and Development and the Organization for ...
More
Austria entered the European Union in 1995 and is a member of the United Nations. It participates, inter alia, in the Organization for Economic Co-operation and Development and the Organization for Security and Co-operation in Europe. Austria also accepts compulsory jurisdiction of the International Court of Justice. Article 44 of the Federal Constitution does not require that constitutional amendments be incorporated into the text of the Federal Constitution. Thus, over the years, numerous federal constitutional laws (Bundesverfassungsgesetze) and federal statutes containing constitutional provisions have been enacted. Moreover, many international agreements and provisions in international agreements have been given constitutional status. Therefore, the structure of Austrian federal constitutional law is fragmented. Nevertheless, the Federal Constitution is the core document for provisions relating to international law.Less
Austria entered the European Union in 1995 and is a member of the United Nations. It participates, inter alia, in the Organization for Economic Co-operation and Development and the Organization for Security and Co-operation in Europe. Austria also accepts compulsory jurisdiction of the International Court of Justice. Article 44 of the Federal Constitution does not require that constitutional amendments be incorporated into the text of the Federal Constitution. Thus, over the years, numerous federal constitutional laws (Bundesverfassungsgesetze) and federal statutes containing constitutional provisions have been enacted. Moreover, many international agreements and provisions in international agreements have been given constitutional status. Therefore, the structure of Austrian federal constitutional law is fragmented. Nevertheless, the Federal Constitution is the core document for provisions relating to international law.
Talia Einhorn
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0012
- Subject:
- Law, Public International Law
Constitutive treaty provisions are not self-executing in Israel. Unless they are implemented in Israeli domestic law by primary or secondary legislation, they cannot be relied upon by private persons ...
More
Constitutive treaty provisions are not self-executing in Israel. Unless they are implemented in Israeli domestic law by primary or secondary legislation, they cannot be relied upon by private persons and cannot be applied by the Court. Furthermore, contradicting Israeli legislation overrides international norms. This result is mitigated by two rules, each of which creates a presumption of compliance — a rule of interpretation and a rule of presumption. In numerous cases, the yardstick for judicial review has been the rule of proportionality, which substantially constrains the discretion of the government.Less
Constitutive treaty provisions are not self-executing in Israel. Unless they are implemented in Israeli domestic law by primary or secondary legislation, they cannot be relied upon by private persons and cannot be applied by the Court. Furthermore, contradicting Israeli legislation overrides international norms. This result is mitigated by two rules, each of which creates a presumption of compliance — a rule of interpretation and a rule of presumption. In numerous cases, the yardstick for judicial review has been the rule of proportionality, which substantially constrains the discretion of the government.
Henry Onoria
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0025
- Subject:
- Law, Public International Law
The relationship between international law and the domestic legal system in Uganda is characterized by constitutional silence juxtaposed with legislative references and judicial pronouncements. The ...
More
The relationship between international law and the domestic legal system in Uganda is characterized by constitutional silence juxtaposed with legislative references and judicial pronouncements. The result is a fluid situation in which the legislature and the judiciary have endeavoured to assign international law a position in Uganda's domestic legal system. While the exercise of the legislative powers of Parliament in implementing treaties attests to the dualist traditions, the judicial approaches mark an effort to step out of that framework. The decisions of the courts underscore the significant role of treaties and treaty obligations especially for the protection and enforcement of human rights. Although the judicial decisions regarding customary international law are scanty, they demonstrate a growing reliance on non-traditional sources of international law, including ‘soft law’ instruments.Less
The relationship between international law and the domestic legal system in Uganda is characterized by constitutional silence juxtaposed with legislative references and judicial pronouncements. The result is a fluid situation in which the legislature and the judiciary have endeavoured to assign international law a position in Uganda's domestic legal system. While the exercise of the legislative powers of Parliament in implementing treaties attests to the dualist traditions, the judicial approaches mark an effort to step out of that framework. The decisions of the courts underscore the significant role of treaties and treaty obligations especially for the protection and enforcement of human rights. Although the judicial decisions regarding customary international law are scanty, they demonstrate a growing reliance on non-traditional sources of international law, including ‘soft law’ instruments.
