Unit 4: Implementation of International Law in Domestic Law PDF

Unit 4: The implementation of international law in domestic law 1. THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW. International and National law are distinct systems with differences in sources, objects, and addressees, but they are interconnected and can influence each othe...

Unit 4: The implementation of international law in domestic law 1. THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW. International and National law are distinct systems with differences in sources, objects, and addressees, but they are interconnected and can influence each other. ⤷ The relationship between IL and NL involves inevitable overlaps in their rules as they apply within the same global structure centered around the state: o The state acts as a conduit between IL and NL. o States create and enforce international rules among themselves and are responsible for complying with them. o Each state must create and apply NL rules and ensure the application of binding international rules, known as "functional splitting". ⤷ Three fundamental principles concerning the systemic relationships: o Good Faith: States must observe obligations under customary or conventional IL (pacta sunt servanda). o Consistency: States should eliminate contradictions between IL and NL. o Primacy of IL: International obligations take precedence over national legislation. ⤷ The relationship raises complex issues, especially for national administrative and judicial bodies unfamiliar with IL. o Treaties are easier to apply than customary IL. o Direct application of IL by national bodies is possible only for "self-executing" norms, which require no further legislative or administrative action. o National entities face greater difficulties applying IL that affects core state sovereignty areas, such as criminal law. ⤷ Three distinct aspects: o Mutual referral processes between IL and NL. o Integration of IL into NL. o Situations of conflict that arise between IL and NL. 2. REFERRAL PROCESSES. 2.1. From international to national law. “Top to bottom”: The relationship involves a "downward referral" where: o An international norm uses national law channels for application and enforcement (the international law can only be completed if national laws are created). o The reference can be either permissive or mandatory: ▪ Permissive: Allows states to regulate situations with national rules.  ▪ Mandatory: Requires states to adopt specific national measures in their legislation. 2.2. From national to international law. "Bottom-Up": Involves "upward reference" where: o Internal rules acquire full meaning through IL. o This can be purely interpretative, requiring national law to be interpreted according to international rules. o It can also be substantive, where a national rule refers to an international rule to determine its content (known as "referral by reference"). 3. INTEGRATION OF INTERNATIONAL LAW INTO NATIONAL LAW SYSTEMS. 3.1. General considerations. ̵ Integration: The process by which countries incorporate international norms into national law. ̵ Mandatory Incorporation: States must integrate international law as per their constitution and national laws. 3.2. Doctrinal approach: monism and dualism. Monism (Hans Kelsen). Legal system is a unified entity with international and national laws connected by a hierarchical structure (each of the legal rules emanates from a higher rule that serves as its basis of validity). ⤷ Fundamental rule: pacta sunt servanda. ⤷ International norms can be directly applied in national law. ⤷ International law is superior to national law. Dualism (Heinrich Trieppel and Dionisio Anzilotti). International and national laws are separate systems with distinct sources, content, and subjects. ⤷ International rules must be transformed into national law to be applicable. ⤷ National rules often take precedence over international ones. 3.3. Spanish case. Previous considerations. The Spanish Constitution (1978) follows a monist approach. ⤷ It recognizes the application of international laws in our legal system. ⤷ It proclaims the incorporation of rules from treaties. ⤷ It gives international rules primacy over national ones (except the Constitution). Reception of General International Law. The Spanish Constitution implies that general international law is integrated into national law. ⤷ Article 96(1) equates general international law with treaties that form part of the national legal system and have primacy over national laws. ⤷ However, it is not stated how the other sources of IL can be integrated. Spanish courts generally recognize and apply international law, although there have been exceptions, particularly in criminal law. Reception of Conventional International Law. Article 96(1) of the Spanish Constitution explicitly states that international treaties, once officially published, are part of the national legal system (they must be published in the BOE (Boletín Oficial del Estado) to be enforceable). ⤷ Treaties must be published in full, including all annexed documents, and any changes must also be published. This ensures transparency and legal certainty. ⤷ Publication Issues. ▪ If a treaty is not published, it cannot be enforced against individuals. ⤷ However, individuals can invoke their rights under the treaty against the National administration. level ▪ No individual can demand the application of an unpublished treaty against another person, but the injured party can seek compensation from the state for the lack of publication. ▪ The lack of publication can also lead to Spain's international liability. ̵ Act 25/2014 on Treaties and Other International Agreements: Ensures the effectiveness, observance, and enforcement of international Inter- treaties. national ⤷ Specifies that validly concluded and published treaties take effect level from the date determined by the treaty or its entry into force. ⤷ All public authorities must respect and ensure compliance with these treaties. ⤷ Treaties are directly applicable unless they require specific national legislation to be implemented. Reception of resolutions of International Organizations. Incorporation and internal application of binding resolutions from International Organizations that impact national legal relations: ⤷ Article 93 CE: Allows treaties to transfer constitutional powers to international organizations, with the government and General Courts responsible for compliance. ⤷ This has followed into practice: Spain has moved towards automatically integrating binding norms from international organizations into its national legal system: ▪ Binding decisions of the UN Security Council, as mandated by Article 25 of the UN Charter. ▪ Normative acts of the European Union, which, according to EU treaties, have direct effect and supremacy over the laws of member states. 4. CONFLICTS BETWEEN INTERNATIONAL AND NATIONAL LAW. Frictions between international law (IL) and domestic law (DL) arise when norms are incompatible. In such cases, a hierarchy or preference criteria determine which rule prevails. These normative conflicts may be analyzed from two perspectives. 4.1. The perspective of International law. IL norms (customary and conventional) prevail over national norms. States aren't forced to change conflicting national laws but maintaining them may constitute an internationally wrongful act and lead to international responsibility. International jurisprudence: o Alabama Case (1872): Emphasized the supremacy of international norms. o Permanent Court of International Justice: National laws are "mere facts" in IL, and cannot override treaty provisions. o International Court of Justice (1988): Confirmed the pre-eminence of IL over national law in advisory opinions. 4.2. The national law perspective: comparative constitutional law approaches. Some national constitutions affirm the priority of IL in case of conflicts. ⤷ For example: o German Constitution (1949): Prioritizes general international law. o US Constitution (1787), French Constitution (1958), Greek Constitution (1975), Dutch Constitution (1983): Recognize treaty primacy over national laws. The dominant trend nowadays is the recognition of the primacy of international norms (customary or conventional) over national laws to maintain coherence and uphold international responsibility. 4.3. The Spanish Constitution of 1978. Spanish law recognizes the primacy of international norms over national legislation, except for the Constitution itself. o Primacy of international norms: ̵ Article 96.1: Indicates that both general international law and valid treaties take precedence over Spanish laws, preventing their modification or suspension. ̵ Act 25/2014: Confirms the enforcement and prevalence of treaties over ordinary national laws. o Primacy of the Constitution: Direct conflicts are rare due to: ̵ Constitutional Court's Approach: Favors an integrative interpretation to avoid conflicts. ̵ Article 95: Treaties with stipulations contrary to the constitution require prior constitutional review, with the Constitutional Court's involvement usually following an opinion from the Council of State.