Call Me by My Name

Extracurricular International Criminal Law

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

The growing tendency among States to terminate their international investment agreements and/or replace them with domestic laws may be understood as a reclamation of national sovereignty vis-à-vis international institutions. The article develops a typology of moves to reassert sovereignty in international investment law, distinguishing: (a) an isolationist reassertion from (b) an international reassertion and in turn from (c) domesticating reassertion. The article further claims that international investment law and its reform needs to be informed by research into domestic systems of governance in order to better conceptualize the ways in which international law principles are implemented alongside and through the use of domestic legal instruments, but also in order to help inform the reform process of international investment law. It finally identifies the ways in which domestic and international law co-exist and mutually influence each other with a view to the substantive and procedural law reform of the investment regime.

Albania’s current legal framework for the protection of undocumented immigrants reveals significant deficiencies, particularly in the areas of legal protection, access to justice, and humane treatment. By aligning domestic laws with international human rights obligations and implementing targeted reforms, Albania can better protect the rights and dignity of undocumented immigrants. This study underscores the urgent need for comprehensive legal and policy changes to ensure that undocumented immigrants in Albania receive the protections they are entitled to under international law. In addition, the study investigates the legal protections afforded to undocumented immigrants in Albania, analyzing relevant domestic laws and international treaties. Despite Albania's commitment to human rights and international norms, the legal framework for undocumented immigrants reveals significant gaps and challenges. Through a detailed examination of Albanian legislation, as well as pertinent international standards, this research explores the extent to which Albanian law protects undocumented immigrants, scrutinizing both domestic legislation and Albania's obligations under international law. By identifying legal deficiencies and proposing targeted reforms, this study aims to contribute to the development of a more equitable and effective legal framework.

EU law and the national laws of the EU Member States are closely interwoven. From a historical point of view, they form two different legal orders, but they may today be viewed as forming part of the same legal system. The chapter explains the relationship between EU law and national law by looking first at the status of EU law in national law and then at the relevance of national law to EU law. The status and impact of EU law in domestic legal systems have already received a great deal of attention in the legal doctrine, and the chapter therefore particularly focuses on the second aspect, which has to date received far less attention. The role domestic laws play at the EU level is examined here by looking at the different functions that Member State national laws have in an EU law context by examining the relevance of national material (substantive) and procedural and institutional laws at the EU level. This chapter concludes that the relationship between EU law and domestic laws is fundamentally different from the traditional dichotomy between public international law and domestic law. Member State national laws have directly impacted, and continue to impact, the substance of EU law. Furthermore, the way in which EU law instrumentalises domestic laws—in particular domestic institutional law—for its own purposes and harnesses national administrative bodies to the same end suggests that EU law and national law are best understood as forming a single complex system of multi-level governance.

This research, titled "The Relationship between Public International Law and Domestic law in the Perspective of Treaties and International Caselaw and the Effects of Globalization - Analytical Study-" tries to highlight the relationship between public international law and domestic law from the point of view of international treaties and international caselaw, through the judgments of international arbitration, Permanent Court of International Justice and the International Court of Justice, as well as the positions of international criminal tribunals, and it examines the changes in this relationship as a result of the effects of globalization.
 Through this endeavor, it was concluded that the position of international treaties has been and continues to prevail over domestic laws when there is a conflict or collision between their rules, and along with international legal provisions, there is an abundant caselaw that have supported the position of international treaties in this regard. Moreover, globalization has affected the relationship between public international law and domestic law by trying to unify international legal rules and domestic laws, and then work to build a unified legal block that is not assigned to a specific geographical spot.

The article analyzes the theoretical foundations of the concept of the principles of the correlation of international humanitarian and domestic law. The relevance of studying the theoretical foundations of the analysis of the concept of the principles of the correlation of international humanitarian and domestic law is due to the deep transformational processes taking place in the system of international legal regulation in conditions of armed conflicts, as well as the need to improve law enforcement practice at the national level. In particular, the war waged by the Russian Federation against Ukraine has clearly demonstrated the need to harmonize the norms of international humanitarian law with the domestic legislation of states that are in a state of armed conflict or involved in the settlement of its consequences. Dualism and monism as legal doctrines constitute the theoretical basis for assessing the legal status of the norms of international humanitarian law in the domestic legal field. In modern conditions of humanitarianization of international law and strengthening the role of imperative norms, preference is given to approaches that ensure the direct effect and priority of the norms of international humanitarian law as a means of protecting fundamental human rights in conditions of armed conflict. This, in turn, forms a doctrinal and normative basis for rethinking the traditional relationship between international and domestic law in favor of human rights, humanity and responsibility. The concept of principles of correlation is not only a doctrinal tool of interpretation, but also a category with a normative and binding nature, which ensures the systemic unity of the global and local levels of legal regulation in the field of armed conflicts. The principles of correlation of international humanitarian and domestic law represent a legal formula of integration, which ensures compliance of national legislation with the standards of international humanitarian jurisprudence, legitimization of state actions in armed conflicts and creates legal prerequisites for the effective implementation of individual and state responsibility for violations of humanitarian norms. Key words: theory of law, principles, correlation of international humanitarian and domestic law, concept of principles of correlation of international humanitarian and domestic law, dualism, monism

The proliferation in terrorist activity has provoked an increase in the body of law, both at national and international level, which has sought to counter and prevent it. The bodies involved in this process range from the UN Security Council to government legislatures. This book is the first to address, in one volume, the wide variety of responses to terrorism as they exist in both international and domestic contexts. It also represents the first ever comprehensive collection of documents referring to terrorism which are to be found in the laws of the UK and France as well as in international law. Terrorism and International Law comprises contributions by thirteen well-known authorities in the areas of international, French and UK law, and is divided into four main sections: international cooperation against terrorism, the French and British responses to terrorism, the limits of state action and a documentary supplement. The contributors have sought to show how international and domestic law can be used together to combat the multi-faceted problems which terrorism raises. The issue of human rights is also discussed with particular reference to the jurisprudence of the European Commission and Court of Human Rights. The fourth documentary section of the book provides coverage of international treaties, UN resolutions, UK and French legislation, case-law and official statements relating to terrorism. This book provides an invaluable source of commentary and reference material in the area of terrorism and international and domestic law which will be useful for practitioners, diplomats, students and teachers.

This chapter demonstrates how the Colombian Constitutional Court shaped the relationship between municipal and international law by decisively defining the role of international law in Colombia. It resorts to the classical distinction between monism and dualism as analytical tools to study the Colombian Constitutional Court's decisions. The Court's position regarding the interaction between international and domestic law does not fit the 'moderate monism' model it has claimed to have followed since 1998. On the contrary, the answer to the question about the status of general international law in the Colombian constitutional order is at some point between constitutional monism and dualism. To that extent, with the exceptions of jus cogens, international human rights law, international humanitarian law, and border delimitation, the Colombian Constitutional Court follows a “sovereigntist or statist” position, in which there is a general prevalence of domestic legislation over international law. However, the chapter does recognize that the Court has found a useful tool in international law to advance in significant social, political, and economic changes.

Many investment agreements include intellectual property (IP) in the definition of ‘covered investment’ or ‘asset’. Until recently, what this means in practice has not been the center of any significant dispute. Now some IP right holders are challenging domestic IP law through investor-state arbitration. In such disputes, the interpretation of relevant international agreements is subject to the rules of the Vienna Convention on the Law of Treaties, which require an analysis of the object and purpose of the treaty being interpreted. The object and purpose of international IP law are not only to provide rights holders with levels of protection at domestic law, but also to enable national regimes to calibrate IP law to meet certain domestic goals. Such goals relate predominantly to incentives to innovate or create, which are broader than simply protection and include, for example, the need to encourage follow-on innovation. Also, related to IP law are other goals such as access to information and availability and affordability of pharmaceuticals. The objects and purposes of investment agreements are primarily about protecting investment from expropriation and ensuring fair treatment at domestic law. Thus, the protection of IP and the protection of investment as matters of international law overlap but are far from identical objectives. This article discusses how the objects and purposes of IP as an investment asset should be interpreted within the framework of investment disputes on the basis of Vienna Convention rules.

This chapter presents an example of how a claim for reparations is to be submitted before a court. It is based on two separate claims, which were actually filed by representatives and members of the indigenous Maya villages of Conejo and Santa Cruz to the Supreme Court of Belize on 3 April 2007. It presents the skeleton argument prepared for the claimants, who alleged that the government of Belize violated their constitutionally recognized customary land rights. It is a ‘living’ example of how historical evidence, cultural arguments, international law, and domestic law may be combined in order to build a solid argument which may prove strong enough to convince a court that the communities concerned are to be granted actual redress for the torts suffered.

This chapter illustrates the role of international and foreign law in domestic constitutional law. Through the case analysis of South Africa (a post conflict state) and the United States (often seen as a country that is not too friendly to international and foreign legal systems), it discusses the role of international and foreign law in reconciling the regional development of the rule of law in a country, by working closely together with domestic constitutional law. The domestic courts both in the United States and South Africa, whenever they deem it appropriate, do consider international and foreign law in the resolution of disputes before them. The conditions under which each jurisdiction may resort to foreign or international law, as well as the criteria used for taking them into consideration, vary. However, most importantly, this practice should be encouraged as it promotes the uniform interpretation of international law and the progressive advancement of norms world-wide, which are aspects that are especially important in the field of human rights.

This book aims to clarify, critically discuss, and propose solutions for the application of international rules of attribution of conduct to States under public international law and international investment law. In a nutshell, the issue is that of the applicability of the principles of ‘attribution’ to States of acts that are in breach of their obligations under international custom or international treaties, with a focus on their commitments pertaining to the treatment of foreign investors under international investment agreements (IIAs), mostly bilateral investment treaties (BITs), and their application by arbitral tribunals. Of special interest and the object of extensive debate within this context is the responsibility of States when the alleged breach has been committed not by the State itself through its organs, but by entities which have separate legal personality under domestic law, which, nevertheless, may engage the responsibility of the State under international law, such as State-owned enterprises (SOEs). The book addresses the relevant issues in a systematic way, approaching them first in general terms on the basis of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International Law Commission (ILC) in 2001, and proceeding thereafter to the specifics of international investment law, based on an accurate examination of the law, practice, and case law, with full knowledge and consideration of the academic debate. To this extent, the book submits that the general principles on attribution are fully applicable within international investment law, which is not a closed system governed by different principles, and that tribunals have to apply them as they generally do.

INTRODUCTION. In modern legal science the problem of the effect and implementation of international law in national legal systems is one of the most popular areas of research. This article is devoted to the consideration and critical analysis of doctrinal assessments of the application by courts of general jurisdiction of the Scandinavian countries of the international legal norms , as well as their possible approaches to resolving conflicts between the norms of international and national law.MATERIALS AND METHODS. The method of comparative law has been used in present essay as a special logical mechanism that permits us to construct a system of rules relating to conflict of laws. Especially these rules are the tertium comparationis in a case of conflict between international and domestic law in municipal courts, as it is going through the formula of induction (analogy): if A is B, and B is C, so A is C.RESEARCH RESULTS. Traditionally international law suggests two ways of solving the problem in a case of the conflict of laws: monistic and dualistic doctrines. But these doctrines are not realizable in a pure form because of their inner contradiction. The main cause of this contradiction is the impossi bility to join interests of the subjects of international law with each other. Taking the doctrine of Interessenjurisprudenz as a ground of our further reasoning we have found the third point, we were searching for: just – the mechanism of elaborating the special remedies by which the conflict of interpretations has to be solved. The main remedy is the overcoming (in a logical sense) the law of excluded the third in the form of analogy. So, we can formulate a construction of the rules relating to conflict of laws in international public law by the analogy with the international private law. The nature of these rules is coincided with the such norms as _esuetu iuris cive necessitates and general principles of law. Especially that permits us to avoid the conflict of interpretation of the two legal orders, that can be caused by the “double standards” and “soft power” doctrines.DISCUSSION AND CONCLUSIONS. The above mentioned analysis permits us to formulate some general principles to established the system of rules relating to conflict of laws. The main cause of them will be following logical premise: the conflict of laws is based on the conflict of interests. That can be evidently by the interpretation rules in a conflict. Interpretation has the aim to harmonized conflicting orders on the ground of the general principles of law relating to municipal and international law. Conflict of laws can be solved through the general principles of law, especially in the case of fundamental contradiction. Conflict of laws can be formulated by the analogy. Conflict of laws can’t be interpreted in teleological way.