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The relationship between international law and municipal law

The relationship between international law and municipal law. Lecture 14 February 13. ASSIGNMENTS. Monday, Feb.16 Finish Whitney v. Robertson p.202 US v. Belmont International Dispute Resolution Rainbow Warrior Case ILC’s Draft Articles on State Responsibility Download and review:

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The relationship between international law and municipal law

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  1. The relationship between international law and municipal law Lecture 14 February 13

  2. ASSIGNMENTS Monday, Feb.16 • Finish Whitney v. Robertson p.202 • US v. Belmont International Dispute Resolution • Rainbow Warrior Case • ILC’s Draft Articles on State Responsibility • Download and review: http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf Quiz-2 Feb.18 Proposal due Febr.23 Midterm, March 2 – EKLCE 1B20 Wednesday, March 4 – Guest Speaker – Adjunct Professor David Akerson Today The rest of the sources of international law The Relation of Intl Law to Municipal Law • Foster & Elam v. Neilson • Missouri v. Holland • Started Whitney v. Robertson p.202

  3. ICJ Statute art. 38Sources: • 1. International conventions - Treaties – Example: the European Convention for the Protection of Human Rights • 2. International custom - Customary intl law (General intl law) • A. State practice • B. Opinio juris – states consider it binding law – not just doing out of courtesy. • JUS COGENS • 3. General principles of law recognized by civilized nations – common legal maxims applied in all municipal legal systems • - res judicata • - EQUITY

  4. More Sources of Intl law: 4. Subsidiary sources • 1. Judicial decisions – (no stare decisis/ doctrine of precedent – a court has to follow earlier judicial decisions when the same points arise again in litigation)- See Art.59. Cases usually are taken into consideration. • 2. Teachings by the most highly qualified publicists of the various nations 5. Additional sources (not mentioned in ICJ Stat. Art38): • 1. Soft law – UN General Assembly (UNGA) Resolutions • (2. Intl administrative law – governing the IGOs – constitutional law of IGOs)

  5. SOFT LAW • U.N. General Assembly resolutions and declarations • Political “obligations” • UN Security Council resolutions – compulsory powers when acting under Chapter VII of UN Charter. • resolutions made by international conferences and many different international commissions and organizations • Example:Resolutions by the United Nations Environment Programme (UNEP)

  6. How can soft law become binding law? • A. If it is used as the text for a treaty • B. If a principle in a declaration (soft law) is practiced by states as a courtesy to one another • C. If the principle in a declaration (soft law) is reflecting customary international law • D. Both A. and C. • E. All of the above

  7. Relation Intl law – municipal law • Monist or dualist • - Monism- intl law and the municipal law are considered to be one and the same legal system where international law is superior to municipal law. • - Dualism – one considers international law to be a separate legal system, you have to incorporate the international law into the municipal law.

  8. US Hierarchy • 1. US Const. – • 2.Treaties (self-executing) – Federal laws - latter in time prevails • 3. Executive agreements – Executive agreements do not prevail over previously enacted federal statutes. • 4. State laws

  9. Case: Foster & Elam v. Neilson • Court: • 2. Sources: • 3. Facts: • 4. Issue: • 5. Holding and Decision: • 6. Reasoning: • 7. Significance of case:

  10. Case: Foster & Elam v. Neilson • 4. Issue: Are self-executing treaties to be considered equivalent to an act of the legislature? • Look at specific language

  11. Case: Missouri v. Holland • 1. Court: • 2. Sources: • 3. Facts: • 4. Issue: • 5. Holding and Decision: • 6. Reasoning: • 7. Significance of case:

  12. Case: Missouri v. Holland • A TREATY MAY OVERRIDE A STATE’S POWER • States may not interfere with the conduct of US foreign relations. • Case shows how potent is the power of treaties vis-à-vis states. • Federal government must be able to conclude international agreements for all 50 states in common. • * Does not mean treaties can trump specific prohibitions or explicit states’ rights in the US Constitution

  13. Case: Whitney v. Robertson (1888) • Court: • 2. Sources: • 3. Facts: • 4. Issue: • 5. Holding and Decision: • 6. Reasoning: • 7. Significance of case:

  14. Case: Whitney v. Robertson • Relationship TREATIES v. FEDERAL LAWS – both are supreme law of the land according to the US Constitution • the courts will always endeavor to construe them so as to give effect to both • if the two are inconsistent, LATTER IN TIME PREVAILS, provided always the stipulation of the treaty on the subject is self-executing.

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