International vs Domestic Legal Systems

Week 7: Differences Between International and Domestic Legal Systems

• International law lacks a central authority like domestic systems
• States are the main subjects of international law, sovereign and equal
• International law functions are decentralized, rules created through treaties or customary law formation
• No global government or law enforcement exists. Enforcement powers limited
• No system of courts with compulsory jurisdiction; states must consent
• Monism treats international and domestic law as one system, with international law superior to domestic law. International law directly applicable
• Dualism views international and domestic law as separate systems. International law transformed into national law for application
• Self-executing norms in treaties are directly applied by domestic courts
• Non-self-executing norms need additional national laws for application

Week 7: Monism vs. Dualism

• Monism: Single legal system, international law superior to domestic law, direct application
• Dualism: Separate legal systems, international law transformed into domestic law

Week 7: Application of International Law in Domestic Systems

• Self-executing norms: provisions in treaties directly applicable by domestic courts
• Non-self-executing norms: require additional national laws for application

Week 7: Compliance and Enforcement

• Enforcement mechanisms, dispute settlement processes involve individual states, international organizations to enforce international law
• Decentralized and institutionalized enforcement mechanisms, coercive and non-coercive enforcement measures

Week 7: The United Nations and Peaceful Settlement of Disputes

• UN Charter obligates states to settle international disputes peacefully
• Chapter VI outlines methods for peaceful settlement of disputes (negotiation, mediation, arbitration, judicial settlement)
• Articles 33-38 detail UN's efforts in promoting peaceful dispute resolution
• Chapter VIII addresses regional arrangements and agencies in conflict resolution
• Pacific Settlement of Disputes supports the principle of peaceful settlement

Week 8: General Scheme

• Primary rule: International obligation violated by a subject of international law. Sources include Treaties, Customary International Law, General Principles of Law, Resolutions, Unilateral Acts
• Secondary nature: Depends on primary obligation breach; must include relevant conduct and attribution to an international subject, responsibility determination independent of domestic law. Special regulation for lus cogens norms and erga omnes obligations

Week 8: How to Determine Responsibility

• Subjective element: Attribution of acts/omissions to organs of state (legislative, executive, judicial, etc.) or those exercising governmental power, even if ultra vires, and even organs placed at the disposal of a state by another state; including insurrectional movements
• Objective element: Breach of binding obligation at the time of the breach

Week 8: Circumstances Precluding Wrongfulness

• Consent (limited scope, e.g., Corfu Channel, Nicaragua v USA)
• Self-Defense (armed attack, necessity, immediacy, proportionality)
• Countermeasures (non-punitive measures taken by the injured state)
• Force Majeure (uncontrollable events, provided not caused by state)
• Distress (acts to save lives, without causing greater harm)
• Necessity (safeguarding essential interest with strict conditions)

Week 8: Consequences of International Responsibility

• New juridical relation
• Breach of obligation (singular or collective, erga omnes)
• Invocation of responsibility (injured states, and other states for erga omnes).

Week 8: Measures for Compliance

• Decentralized measures: Countermeasures (proportional, reversible)
• Institutionalized sanctions: Require proper structures

Week 9: International Courts and Tribunals

• Part of the peaceful settlement mechanisms
• Only inter-state tribunal with general jurisdiction
• Great influence on clarification and development of public international law.

Week 9: Organization

• 15 Judges elected by General Assembly and Security Council. Up to 2 Judges ad hoc
• Representative of "main forms of civilization and principal legal systems"
• 9-year terms, with re-election possible. President and Vice-President for 3 years

Week 9: Procedure

• United Nations Charter, Statute of the court, Rules of court, Resolution, Practice Directions

Week 9: ICJ Jurisdiction and Admissibility

• International conventions, international custom, general principles of law, subsidiary means

Week 10: Instruments and Powers at the Disposal of Public Administration

• Administration services public interest
• Legistlature empowers administrative bodies
• How the administration effectively employs policies (judicial acts, factual acts).

Week 10: Public Law vs Private Law

• Public law manages political power, structural organization, and interactions with citizens
• Private law governs relationships amongst individuals, entities and covers areas like contracts, property and family matters

Week 11: General Principles of Administrative Law

• Scope and competence of administrative tasks have expanded and granted greater discretionary freedoms
• Considerations include compliance with rules, respecting fundamental rights and adherence to general principles of administrative law from a procedural and substantive perspective
• These principles aim to control administrative power, limit abuses and provide safeguards