International Law and Domestic Compliance

Part III: Ensuring Compliance with International Obligations

• International law application is governed by articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT).
• Article 26 emphasizes pacta sunt servanda, meaning agreements must be kept.
• Article 27 prohibits parties from using domestic law to avoid treaty obligations.
• Domestic legal systems determine the conditions for applying international law.
• Two theoretical approaches exist for applying international law domestically:
  • Monism: A unitary legal system where international law is supreme to domestic law.
    • Historical variations in accepting international law supremacy include the rise of nationalism and authoritarianism in the 18th and 19th centuries, compared to the more consistent international law supremacy of the 20th century with legal scholars like Hans Kelsen.
  • Dualism: International and domestic law are separate legal systems.
    • States are distinct from individuals.
    • Customary international law, treaties, and statutes differ.
    • International Law must be transformed into national law to apply to individuals.
• Self-executing norms from international treaties can directly apply within a state's domestic legal system if appropriately precise.

Theoretical Approaches to Application

• Monism: A unifying legal system embracing all legal orders.
  • Two versions:
    • Supremacy of municipal law (18th-19th centuries): International law isn't binding on states.
    • Supremacy of international law (20th century, Hans Kelsen): International law as supreme to national laws within one legal system.
• Dualism: Two distinct legal systems.
  • International law governs states and domestic laws govern individuals.
  • Sources differ – customary and treaty law versus national statutes.
  • International law needs transformation into national law to affect individuals.

Enforcement of International Law

• Mechanisms guarantee international law application against state or international organization (IO) will.
• Dispute settlement processes include negotiation, good offices, mediation, inquiry, conciliation, and arbitration.
• Arbitration is a method of dispute resolution using an arbitral tribunal (ad hoc).
• Different international legal systems arise from the lack of central authority (states/subjects) and sovereign legislative bodies with principle of consent.

International Responsibility and Sanctions

• Primary rule: An international obligation where a state or international organization (IO) fails to fulfill its duty.
• First juridical relation: between states.
  • Rights and obligations for international legal subjects and for humanity.
• Second juridical relationship: (new relation) arises after breach of the primary rule.
  • New rights and obligations are created with initial obligations persisting.
  • International responsibility includes consequences and includes new rights and obligations.

Determining Responsibility

• Subjective element: state/IO attribution.
  • State organs, acting or not on their own initiative.
  • Individuals or entities exercising government functions; acting as a state organ.
  • State organs operating outside of state's approval.
• Objective element: breach of the obligation.
  • State being bound by the obligation.
  • Consequences (variety) of a breach based on the obligation.
  • Non prevention
  • Endorsement.

Breach of Erga Omnes Obligations

• Applies only in serious breaches of Jus Cogens norms.
• Non-recognition/non-assistance in violation.
• Other states must not recognize or cooperate to end the breach.
• Enforcement measures include decentralized countermeasures to pressure for compliance.

International Court of Justice (ICJ)

• 15 judges elected by the UN General Assembly and Security Council.
• Judges represent diverse legal systems.
• Part of the UN's peaceful dispute settlement mechanisms.
• Decides legal disputes between states.
• Provides advisory opinions on legal issues referred by UN organs.
• Functions and procedures in case proceedings.

Jurisdiction of the ICJ

• State consent, principle of consent, is crucial.
• Jurisdiction issues involving third party states or intervention cases.
• Procedure for contentious cases, involving parties' applications, written proceedings, and preliminary objections.
• Preliminary objections include procedural matters that need resolutions before the merits can be reviewed.

Additional Principles of EU Administrative Law

• Specific principles of EU administrative law.
• EU procedural rules for decision-making.
• EU administrative law's substantive principles: rule of law, legal certainty, legitimate expectations, proportionality, precautionary principle.
• Principles and grounds for challenge or invalidating governmental decisions.
• Importance of legal certainty and non-retroactivity of laws.
• Role of the Court of Justice of the European Union (CJEU) in upholding the principles.
• EU administrative law's principles and rules around specific elements like the legality principle, revocation of acts, and legitimate expectations.
• Proportionality principle in EU administrative actions.
• Precautionary principle used to address risk management in scientific uncertainty.

This quiz explores the application of international law as governed by the Vienna Convention on the Law of Treaties. It covers key principles such as pacta sunt servanda and distinguishes between monism and dualism in the context of treaty obligations and domestic law. Test your understanding of how these theories influence legal systems worldwide.