National Legal System and International Law
In disputes concerning the exact meaning and application of national legislation, it is for the courts to decide on the meaning of the law. Under international law, interpretation falls within the competence of the States concerned, but may also, by virtue of treaty provisions or with the consent of the parties, be delegated to judicial bodies such as the International Court of Justice. Thus, while it is generally the responsibility of States to interpret the law themselves, diplomatic processes and the availability of supranational judicial bodies regularly provide assistance to that end. The origins of international law date back to antiquity. Early examples include peace treaties between the Mesopotamian city-states of Lagash and Umma (circa 2100 BC) and an agreement between the Egyptian pharaoh Ramses II and the Hittite king Hattusilis III, concluded in 1258 BC. J.-C. Intergovernmental pacts and agreements of all kinds have also been negotiated and concluded by communities around the world, from the Eastern Mediterranean to East Asia. The relationship between international law and domestic law is based on two major schools of law. Dualists regard international law and domestic law as distinct, and domestic law can apply international law only if it has been incorporated into domestic law. Incorporation may result from an Act of Parliament or any other political act, or may be enforced by the courts. On the other hand, monists consider international law and domestic law as part of a single legal system. According to this theory, domestic law is subordinate to international law. 37 See, for example, Buergenthal, Thomas, Self-Execution and Non-Execution Treaties in National and International Law, 235 Lecture Series 303, 317 (1992)Google Scholar.
As an “advisory, political and representative body”, the United Nations General Assembly is “empowered to make recommendations”; It cannot codify international law or make binding decisions. [47] [48] Only internal resolutions, such as budgetary matters, can bind the functioning of the General Assembly itself. Violations of the Charter of the United Nations by members of the United Nations may be debated by the injured State in the General Assembly. England is an example of the dualistic model of international law. A contract has effect in English domestic law only if it forms an integral part thereof. Once a contract has been incorporated into English law, it is fully enforceable in court. But the fact that a contract is part of English law does not necessarily mean that individuals have a cause of action arising from the contract. Incorporation takes place only if the Treaty amends national law or if it requires an increase in revenue or a change in taxation. As with many treaties in the field of external relations, ratification is a formality and no involvement is required. An unincorporated contract has no formal meaning in English law. If it conflicts with the statute or the common law, the common law prevails. An incorporated contract is part of national law, but has no special status.
The relationship between incorporated contracts and other legal provisions is the same as the relationship between two laws. Parliament is the first in the sense that it can pass legislation that is incompatible with international treaty obligations, but which binds the United Kingdom at international level. Often extremely complicated, ICJ cases (fewer than 150 since the Court`s establishment from the Permanent Court of International Justice in 1945) can span several years and typically include thousands of pages of briefs, evidence and leading international specialist lawyers. As of November 2019, 16 cases were pending before the ICJ. Decisions in other arbitration proceedings may or may not be binding depending on the type of arbitration agreement, while decisions arising from contentious cases heard by the ICJ are always binding on the States concerned. There are many international treaty bodies that decide on the legal issues for which they may be competent. The only one that claims universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice and the International Criminal Court (when national systems have completely failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport. Elements of the naturalist and positivist schools have been synthesized, notably by the German philosopher Christian Wolff (1679-1754) and the Swiss jurist Emerich de Vattel (1714-67), both of whom sought common ground in international law.
During the 18th century, the positivist tradition gained wider acceptance, although the concept of natural rights remained influential in international politics, particularly through the republican revolutions in the United States and France. It was not until the 20th century that natural rights became more important in international law. International legal theory encompasses a variety of theoretical and methodological approaches to explain, analyze and propose improvements to the content, formation and effectiveness of international law and international law institutions. Some approaches focus on the issue of compliance: why do states follow international standards when there is no coercive power to ensure compliance? Other approaches focus on the problem of international rule-making: why do states voluntarily adopt international norms that restrict their freedom of action in the absence of global legislation? while other perspectives are policy-oriented: they develop theoretical frameworks and tools to critique existing standards and make suggestions on how they can be improved. Some of these approaches are based on national legal theory, others are interdisciplinary and others have been developed specifically to analyse international law.
