2024-25 wk4 Lecture: ConLaw meets IL PDF

14 October 2024 Dr. Friedemann GROTH [email protected] KNOWLEDGE OF CONSTITUTIONAL LAW, PUBLIC INTERNATIONAL LAW AND HUMAN RIGHTS LAW Week 4: Constitutional Law meets International Law...

14 October 2024 Dr. Friedemann GROTH [email protected] KNOWLEDGE OF CONSTITUTIONAL LAW, PUBLIC INTERNATIONAL LAW AND HUMAN RIGHTS LAW Week 4: Constitutional Law meets International Law Week 4 - Learning Objectives Constitutional Law meets International Law By the end of this week, you will be able to: ✓ Understand what international law is ✓ Understand how international law enters the domestic sphere according to constitutional law ✓ Explain the comparative constitutional law theories of monism and dualism and their variants ✓ Compare how different domestic legal systems integrate international law Terminology Overview: What is International Law?  What is a Constitution? Collection of the rules to set up, regulate, and govern a state What is a Basic laws Usually, highest in the hierarchy of the norms domestic Symbol/product of sovereignty and statehood (authored by the constituent power) legal order? Why do we have separation of powers? (RECAP) This Photo by Unknown Author is licensed under CC BY-NC  International law consists of rules and principles that regulate the relations between states and other entities, provided they have international legal personality What is ✓ Between states/sovereigns International (Original and major subjects of PIL) Law? ✓ Between states and other entities possessing international legal personality (more in week 5) ✓ Covering a range of activities E.g. international agreements, diplomatic relations, trade, protection of human rights, conduct of armed conflict, cooperation on combatting the harmful effects of climate change and global warming  Art. 2 Vienna Convention on the Law of Treaties (VCLT) What is a →Whether named Treaty, Convention, Agreement, treaty? Protocol, Pact, Accord, Covenant, Statute, or Charter →More on that in week 6 What is their primary function? → Create rights and obligations for states What are treaties about? State Sovereignty vs. International Law Constitution (usually) as ultimate symbol of the state’s sovereignty Can a constitution leave room for other sources of law? Process of integration (usually) provided by Constitution: Conclusion of Treaties Treaties’ Place in Hierarchy State Sovereignty vs. International Law Again, more on treaties in weeks 6-10 Treaty Conclusion: Treaty-making: state organ entering into treaty negotiations and signing treaties? ❖ ‘Monarch’/Head of State ❖ Executive power ❖ Representing international legal personality Ratification (declaring a treaty binding) ❖ Often the organ competent for law-making (e.g. Parliament) → (often) Involvement/Representation of all (separated) state powers in the conclusion of treaties State Sovereignty vs. International Law Once a treaty binds a state: → How are the international legal obligations carried out within the state and its domestic legal system? → Is International Law automatically Law or does it need to transformed/transposed first? →What happens in case of conflict with domestic law? These are questions of internal Constitutional Law! (From an International Law perspective, the (automatic) supremacy of International Law obligations is clear!) Monism and Dualism: How international law enters the domestic sphere  Dualism National law and treaties are treated in two separate realms. Treaty law needs to be transposed into national law by the lawmaker. (s. Heringa, Constitutions Compared, 7th edn., p. 324) Monist and Dualist Model Monism Treaties ratified by the state are treated as part of the [coherent] national legal order. Individuals can invoke treaty provisions before a national court, like national law (Heringa, Constitutions Compared, 7th edn., p. 324)  Dualism National Int’l Law legal order Monist and Dualist Model Monism National legal order Int’l Law Resembles graphic from: Heringa, Constitutions Compared, 7th edn, p. 326.  Variations Monism Dualism Both systems never exist in their ‘pure’ form A state is predominantly monist or dualist, yet may use in certain cases the other approach Different sources of IL (week 7) = different approaches Source: 2022 Ranjan, p.572 How do we determine if it is a monist or dualist system? Search Constitution (and/or other domestic laws): What is the status of IL in domestic law? Answer may be explicit or implicit in text Where not stipulated, look at the practice: Legal or political tradition, judicial decisions, or political practice Read: writings of constitutional scholars Lastly: Analyze yourself  Binding text: Consequences of Monism Which wording is binding? and Dualism In which language is the wording binding? Which history of negotiation records is binding? Is the interpretation of an international court binding? → ANSWERS: 1) (purely) monist: original treaties, their wording, language(s), negotiation records, and the judgements of international courts 2) (purely) dualist: transposing national law, its wording, language(s), and negotiation records, their interpretation of domestic courts 3) Exceptions? For dualism: if transposing national law (clearly) incorporates meaning wording, language(s), and negotiation records of original treaty or subsequent court decisions as binding; For monism: Only theoretically possible  To be sure: Looking at whether these consequences are part of the actual practice, can help you determine if a system is rather monist or dualist! Taking domestic effect: At what time does the Consequences of Monism international law of a treaty become binding domestically? and Dualism → ANSWER: 1) (purely) dualist: upon transposition of norms 2) (purely) monist: upon ratification of treaty 3) Exceptions? Theoretically possible Hierarchy: Which norm prevails in a conflict of norms – the international or the domestic norm (e.g HRs)? → ANSWER: 1) (purely) dualist: see (case by case!) on which level of domestic hierarchy each specific international norm is implemented; exception possible! (e.g. general rule about which domestic level all international law needs to be transposed to) 2) (purely) monist: see which place in domestic hierarchy is assigned to all international norms/law Comparative Constitutional Law: Examples of Monism and Dualism in Reality The Netherlands Predominantly Monist system (s. also Art. 93 f.) Need for ratification where not self-executing (conferring rights) Dualist tendencies regarding ‘conflicting treaty rules’ if treaty provisions are not “clear, precise, and self-executing” = Parliament (Bicameral legislature) Germany Quite clearly Monist system But clear Dualist element: for ratification of treaties, law by Parliament is required (but not for International Customary Law! (Art. 25 Basic Law); what ICL is: week 7) And some reservations by Constitutional Court (see EU Law, semester 2!) Canada Power to make treaties: ▪ Nothing in 1867 Constitution ▪ Procedure: signature and ratification by federal executive power (1947 ‘Letters Patent’) ▪ No approval of Parliament/legislative required yet (in practice: often asked) No recognition of treaties as part of the internal/domestic law (like UK) ▪ Dualist system Implementation of a treaty: needs legislative application through Parliament (s.132 Canadian Constitution) Canadian courts: will not give effect to a treaty, except if enacted into law by the appropriate legislative body Protection of federal system! The United States mixed approach, but primarily dualist system “qualified monist system” Monist approach only to self-executing treaty provisions upon ratification by Congress Overriding federal and state law (not Constitution) Distinction made by Supreme Court ruling in Foster v. Neilson (1829) to clarify the Supremacy Clause of Article VI US Constitution Variation: South Africa Dualist system: treaty obligations must be incorporated into South African domestic legislation Important Exception: Human Rights treaties (monist approach) → S.39(1)(b) SA Constitution: courts obliged to consider international law when interpreting the Bill of Rights of the Constitution  Example and Workshop preparation: Do you recognize this building? International Criminal Court – a very quick introduction 1998 Rome Conference: 160 states Treaty-based Court: Operating under the Rome Statute Negotiation Process o States, Legal Experts, Civil Society o Adoption final text: 17 July 1998 Principle of Complementarity: “Unwilling or unable” to act Entering into force after 60 Ratifications (2002) ‘core crimes’ within the jurisdiction of the Rome Statute? o Genocide o Crimes against humanity o War crimes o Crime of aggression Week 4 – Workshop preparation Choose the state of your nationality or one you are interested in find out if it is a state party to the Rome Statute (International Criminal Court), and if so, when it signed and ratified it. https://asp.icc-cpi.int/states-parties Remaining preparation on Brightspace: Armenia-Azerbaijan conflict over Nagorno-Karabakh Armenia’s Constitution