9. International law and municipal law - Law Trove
Third, moving beyond the domestic-international divide, political scientists are Keywords: international law, international relations, world politics, foreign Faith and scepticism in private international law: Trust, governance, politics, and . Yale Law School Faculty Scholarship. Relation Between International Law and Municipal. Law. Edwin Borchard. Yale Law School. Follow this and. On the place of international law in relation to the Constitution and domestic national legislation was adopted in the Kenyan High Court case of Diamond Trust.
The only one claiming universal jurisdiction is the United Nations Security Council. East Africa Community[ edit ] There were ambitions to make the East African Community, consisting of KenyaTanzaniaUgandaBurundi and Rwandaa political federation with its own form of binding supranational law, but this effort has not materialized. Union of South American Nations[ edit ] Main article: It intends to establish a framework akin to the European Union by the end of It is envisaged to have its own passport and currency, and limit barriers to trade.
Andean Community of Nations[ edit ] Main article: It started with the Cartagena Agreement of 26 Mayand consists of four countries: BoliviaColombiaEcuador and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries. International legal theory[ edit ] Main article: International legal theories International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements.
Some approaches center on the question of compliance: Other approaches focus on the problem of the formation of international rules: Some of these approaches are based on domestic legal theorysome are interdisciplinaryand others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural lawthe Eclectic and the Legal positivism schools of thought. The natural law approach argues that international norms should be based on axiomatic truths.
In Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentiumestablished by the consent of the community of nations on the basis of the principle of pacta sunt servandathat is, on the basis of the observance of commitments.
On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the Peace of Westphalia.
The early positivist school emphasized the importance of custom and treaties as sources of international law. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law.
The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.
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Modern legal positivists consider international law as a unified system of rules that emanates from the states' will.
International law, as it is, is an " objective " reality that needs to be distinguished from law "as it should be. On this view, "public" international law is said to cover relations between nation-states, and includes fields such as treaty lawlaw of seainternational criminal lawthe laws of war or international humanitarian lawinternational human rights lawand refugee law. By contrast "private" international law, which is more commonly termed " conflict of laws ", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies.
This concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective. A further frequently used term is "transnational law", which refers to a body of rules that transcend the nation state.
John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments Also, since the bulk of international law is treaty law, binding only on signatories, then; 'If legislation is the making of laws by a person or assembly binding on the whole community, there is no such thing as international law.
For treaties bind only those who sign them. The condition of international relations is best described as international anarchy; 'While in domestic politics the struggle for power is governed and circumscribed by law, in international politics, law is governed and circumscribed by the struggle for power.
This is why international politics is called power politics War is the only means by which states can in the last resort defend vital interests Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies. These two jurisdictions are chosen because, even though both have constitutional provisions directly incorporating international law into their domestic legal systems, they have adopted differing approaches to the interpretation of these constitutional provisions, with the result that the hierarchical place of international law in the two comparative systems are also different.
The United States has, over the years, restricted the direct incorporation and use of international human rights law in its domestic jurisdiction using the self- and non-self-executing doctrine, while Colombia has continued a practice of direct incorporation of international human rights law and the reliance on international human rights standards to enhance the national protection of human rights and fundamental freedoms.
The comparative study of these two jurisdictions is thus intended to indicate the two alternative approaches that can be adopted in the interpretation of article 2 6 of the Kenyan Constitution, and the effects that a choice of any of the alternative interpretations will have on the hierarchical place of international human rights law in the Kenyan domestic legal system and, consequently, the protective value of international human rights norms in Kenya.
Part 5 entails a proposal regarding the hierarchical status that international human rights law should be accorded in the Kenyan domestic legal system, if the objective of the drafters of the Constitution that international human rights law should play a prominent role in governance in Kenya, is to be realised.
- International law
- International legal theories
Part 6 contains a short conclusion. With the promulgation, international human rights law in ratified treaties have been directly incorporated into the Kenyan domestic legal system through article 2 6 13 of the Constitution. She held that article 2 6 imported the provisions of international treaties and conventions that Kenya has ratified into Kenyan law as part of the sources of Kenyan law.53 Relationship between international law and domestic law (I)
Before the promulgation of the Constitution, Kenya took a dualist approach to the application of international law. A treaty or international convention which Kenya had ratified would only apply nationally if parliament domesticated the particular treaty or convention by passing the relevant legislation. The Constitution and in particular articles 2 5 and 2 6 gave new colour to the relationship between international law and international instruments and national law.
Further affirmation of the changed situation in relation to the applicability of international law in Kenya after the promulgation of the Constitution was provided by the Kenyan Court of Appeal in the case of David Njoroge Macharia v Republic, 19 and by the Supreme Court of Kenya in the dissenting opinion of Chief Justice Willy Mutunga in the One-Third Gender Representation Advisory Opinion as follows: These provisions collectively call for the immediate removal of this discrimination through the empowerment of women representation in political office, with CEDAW calling for stop-gap measures to be put in place to reverse the negative effects on our society through the operation of this systemic discrimination.
This direct incorporation of international human rights law into the domestic legal system, as per the Constitution, is in line with the prevailing jurisprudence of international treaty bodies such as the Committee on Economic, Social and Cultural Rights ESCR Committee which, in General Comment 9, has recommended to member states the immediate and direct application of binding international human rights instruments in the domestic legal systems of states so as to enhance the ability of individuals to seek effective, accessible, affordable and timely enforcement of their rights in domestic courts and tribunals.
International legal theories - Wikipedia
The main concern of this article is the hierachy or place of international human rights law in ratified international treaties in relation to other sources of law in the Kenyan domestic legal system. To respond to this main concern, a brief analysis of a few of the jurisdictions with provisions incorporating international law into their domestic legal system is imperative. Our Constitution declares a treaty to be the law of the land.
It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself without the aid of any legislative provision.
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But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the Judicial Department, and the Legislature must execute the contract before it can become a rule for the Court.
Following on this holding of Chief Justice Marshall, the US courts proceeded to develop criteria for the determination of the self-executing nature of a treaty, which included the following: The Court, in a six-to-three decision, held as follows: Slyz contends that this is a prudent way of avoiding the question of the supremacy of one system of law over the other, as they do not share a common field of application.
By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other.
When the two relate to the same subject, the courts will always endeavour to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: A reading of article 2 6 to infuse this type of interpretation in the Kenyan jurisdiction is possible, taking into account article 21 4 of the Constitution which calls on the state - that is parliament and the executive respectively - to enact and to implement legislation aimed at fulfilling its international human rights obligations.
An interpretation placing international human rights norms in ratified international human rights treaties at the same hierarchical level as national legislation was adopted in the Kenyan High Court case of Diamond Trust Kenya Ltd v Daniel Mwema Mulwa, 43 a case which concerned the constitutionality of a provision of the Civil Procedure Act of Kenya which permitted the comital of a judgment debtor to civil jail contrary to article 11 of ICCPR, which was incorporated into Kenyan law through article 2 6 of the Constitution.
We have in this country a three tier hierarchy of the law. At the apex is the Constitution of Kenya, which is the supreme law of the land, to which all other laws are subservient. Next in rank are Acts of Parliament, followed by subsidiary legislation at the bottom of the pile. Section 40 thereof makes provision for the arrest and detention of judgment debtors To the extent that this Section provides for the arrest and detention of a judgment-debtor, it is clearly in conflict with Article 11 of the [ICCPR].
The two are contradictory. This raises several issues. Can the two provisions co-exist? If so, how can they operate side by side? And if any cannot co-exist, which of them should take precedence over the other? The highest rank it can possibly enjoy is that of an Act of Parliament. And even if it ranks in parity with an Act of Parliament, it cannot oust the application of section 40 of the Civil Procedure Act. Nor for that matter, can it render section 40 unconstitutional.
For that reason for as long as section 40 remains in the statute book, it is not unconstitutional for a judgment-debtor to be committed to a civil jail upon his failure to pay his debts.
Since, however, section 40 is at variance with the provisions of an International Convention which is part of the law of Kenya, it follows that we now have two conflicting laws, none of which is superior to the other.
Despite the Court holding that international human rights norms were in parity with national legislation, it failed to adopt the last-in-time doctrine, as has been adopted in the United States, a doctrine which would have ensured that the international human rights norms contained in ICCPR override the provisions of the Civil Procedure Act due to the fact that ICCPR was incorporated into the Kenyan domestic legal system at a later date via article 2 6 of the Constitution.
An adoption of the last-in-time doctrine also would have ensured that the Court does not abdicate its resposibility as the protector of the fundamental rights in the Constitution by contending as follows: Until a decision is taken at a proper forum, section 40 of the Civil Procedure Act will continue to haunt the liberal freedoms enshrined in the Constitution until it is repealed or found to be unconstitutional at a proper forum.