The Relationship Between The English Legal System And International Law International Law Essay

The Relationship Between The English Legal System And International Law International Law Essay The essay deals with the relationship between the English legal system and international law. Although there is some discrepancy among the two systems, they merge at some points. Looking at the theories around this issue, our domestic legal order seems to follow the dualist approach. Nonetheless, both the attitude of international law towards municipal rules and the approach as regards the law of the nations by the English legal system need to be examined. Even though the international legal machine does not permit a state to use its domestic law as a defence to violation of its international obligations, it does not entirely ignore municipal law rules. This means that there is an overlap between the two systems. Apart from that, by observing the reaction of the English legal system to treaty law it appears that conventions should be domesticated, through transformation, by an Act of Parliament. It should be noted that this is an expression of the dualist approach. In addition, menti on is made to the attitude of our domestic legal system towards customary international law, which tends to be unsteady. Despite the fact that international custom was considered to be incorporated in English law for years, according to recent cases there seems to be a change towards the transformation doctrine. Moreover, though there are areas of international law where the English courts cannot intervene, the law of the nations is not utterly distant from our domestic legal system. As a matter of fact, albeit some differences between the two legal systems they have influence upon each other.    Introduction Nowadays, a close observation of international law will reveal an enormous development in its substance. As a matter of fact, this distinct system of law, which regulates the interrelationship of sovereign states, deals with exceptionally significant matters like human rights, war and international crimes. At this point, a question that might be asked by a person reading regularly the International News section in a British newspaper will be the following: Given the importance of international law and its common interests in certain fields with the English legal system, what is their relationship? Is there an overlap or a gap between them? In order to provide a reliable answer, we should examine the position of municipal law within the international sphere and mainly how the English legal system responds to treaty and customary international law. Theories on the relationship of international and internal law Among other things, scholars attempted to explain the relationship between international and domestic law through various theories. Most persistent have been the theories of monism and of dualism. On the one hand, monists (like Lauterpacht) argue that there is a single legal order with international law at the peak and all national rules below it in the hierarchy.  [1]  In contrast, under the dualist theory supported, supported by Oppenheim and Triepel, international and municipal are two different legal systems existing side by side but operating in different arenas.  [2]  Indeed, jus gentium is a law between independent states whereas domestic law applies within a state regulating the relations of its citizens with each other and with the executive. Accordingly, international law rules to be considered have to be domesticated through adoption or transformation by the national legislature. In general, it seems that various countries have adopted one or the other doctrine with many common law countries supporting the dualist view while civilian systems subscribe to the monist school of thought. Nevertheless, there are elements of both perspectives in the jurisprudence of many states. Therefore, the opposing schools of dualism and monism do not adequately reflect actual state practice.  [3]  Specifically, Fitzmaurice characterizes the monist-dualist controversy as unreal and artificial since each system is supreme in its own field.  [4]   Even though the English legal system tends to employ the dualist approach  [5]  , before forming a whether or not it never meets the law of the nations, an assessment of their attitude towards each other ought to be conducted. The position of English-municipal rules in international law Undoubtedly, in the practice of international courts and tribunals there is a dividing line between international and domestic law. They have established principles regarding the application of municipal law within the international legal system. As a general rule, a state cannot justify the violation of its international obligations by relying upon its domestic legal situation.  [6]  This provision has been established by state practice and decided cases. To start with, the Vienna Convention on the Law of Treaties 1969 (hereafter VCLT) states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.  [7]  In addition, non-compliance with municipal law rules on the competence to make treaties may not generally be invoked by a state to invalidate its consent to a convention, except if the infringement of its domestic law in question is manifest and concerned a rule of fundamental importance.  [8]   Apart from that, case-law illustrates the above principle. For instance, in the Alabama Claims Arbitration  [9]  , albeit the absence of British legislation necessary to intervene with the private construction and sailing of the ship concerned, Great Britain violated its obligations as a neutral in the United States Civil War by allowing the departure to occur. Further, reference should be made to the decision of the International Court of Justice in the Applicability of the Obligation to Arbitrate under Article 21 of the UN Headquarters Agreement of 26 June 1947  [10]  , where it was emphasized that the fundamental principle of international law is that international law prevails over domestic law.  [11]  This was re-affirmed in the La Grand  [12]  case, where the US procedural default rule could not affect the liability of the USA for the breach of the Vienna Convention on Consular Relations 1963. Besides, it is obvious that there is a general duty for states to bring domestic law into conformity with international obligations. As shown in the Exchange of Greek and Turkish Populations  [13]  case, international law rules can be translated into internal law by any method that the domestic jurisdiction of states wishes to apply. Even a failure to bring municipal law into line with its international obligations is not in itself a direct contravention of international law and a violation occurs only when the state concerned could not fulfil its obligations on a specific occasion.  [14]   Additionally, it must be noted that international law cannot entirely ignore municipal law which plays a crucial role in the operation of the international legal machine.  [15]  We should not forget that domestic law may be used as evidence of international custom leading to the growth of this source. There have been occasions that were decided solely on the basis of the municipal law of a particular case.  [16]  What is more, in the case of Certain German Interests in Polish Upper Silesia  [17]  it was underlined that domestic court decisions and legislative measures may comprise evidence of conduct by the state concerned which can essentially create international responsibility. As a result, internal law rules have numerous functions on the international plane and they should not be utterly marginalized. The attitude of English law to international law Aside from the response of the international legal apparatus to municipal rules, it is more essential to take note of the approach of the English legal system to the law of nations in our attempt to find whether they have a hidden meeting place. It is inevitable that the escalating permeation of international legal rules within domestic systems influences the way English law reacts to jus gentium. The next two sections pertaining to the status of international treaties and customary law in our domestic system will help us discover if the two systems merge. National legal systems are free to select how they implement these two sources of international law and their choice of materials varies greatly.  [18]  It is worth mentioning that there is a dichotomy between the rule for treaties and that for customary law, surrounding the application of international law by English courts.  [19]   Treaty Law Approach In England, the fact that the conclusion of treaties is within the prerogative of the Crown determines the way that treaty law is approached. There is no doubt that in the absence of a transformation doctrine, which leads to the conversion of international law into municipal law by an Act of Parliament, the executive would be able to legislate without the legislature.  [20]  This doctrine is an expression of the dualist position, separating the two systems of law and requiring the translation of treaties into domestic legislation.  [21]   One of the first cases establishing that a treaty cannot adversely impact private law rights unless it has been made a part of British law by Parliament is the Parlement Belge case.  [22]  This principle was reinforced in the International Tin Council Case  [23]  where Lord Oliver clarified that a treaty is not part of English law unless and until it has been incorporated into the law by legislation.  [24]  On the other hand, Jennings criticizes the doctrine in the above judgment because it underestimates the role of international law and creates a distance between the two systems.  [25]  Although only treaties in relation to the conduct of war and cession do not require transformation, Fox points out that the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex. Parte Pinochet Ugarte (No. 3)  [26]  disregarded such a constitutional principle and implemented in English law unincorporated treaty obligations on the immunity of the Former Head of State.  [27]   Furthermore, the distinct reaction of the English legal system to the European Convention on Human Rights (hereafter ECHR) and to binding decisions of the United Nations should be examined. Since 1974, English courts have consistently taken ECHR into account while applying statutes, though it was unincorporated.  [28]  Andrew Cunningham maintains that such an approach is not well justified when other unincorporated conventions and instruments are sidestepped.  [29]  Nonetheless, an obscure point that should be elucidated is that the English legal system did not abandon dualism in human rights cases as it insists that an unincorporated treaty cannot prevail over a contradicting statute.  [30]  Even after the enactment of the Human Rights Act 1998 which incorporated the ECHR, the validity of any incompatible primary legislation might not be affected given the provision in section 3(1). As regards the resolutions of the Security Council, the UK has implemented the United Nat ions Act 1946. It is evident that even Security Council decisions are not self-executing and in the case of UN sanctions they can be only enforced as a consequence of this piece of domestic legislation with which the Crown can adopt Orders in Council. It is noteworthy that in spite of the Ponsonby rule, where signed treaties subject to ratification, acceptance, approval or accession have to be laid before Parliament at least twenty-one days before any of these actions is taken, the UK practice suggests that a ratified treaty becomes effective only in international law. Apparently, the English legal system is hesitant to apply directly treaty law in its municipal law. Yet, it is at least accepted that the text of Conventions can be used as an aid to statutory interpretation. Admittedly, in the Salomon  [31]  case it was made clear that the Crown does not intend to break an international treaty and the convention might be utilised when domestic legislation is ambiguous. The above principle was strengthened when Lord Diplock in Fothergill v Monarch Airlines  [32]  encouraged the courts to use the rules for interpretation of unincorporated treaties in the VCLT. Despite this, Gardiner has observed that the judiciary in England is not eager to apply the Vienna rules systematically, indicating a reluctance to acknowledge the importance of international law in the domestic system.  [33]   Customary International Law Approach Moreover, we need to analyse the status of customary international law in the English legal system to find out its relationship with the law of nations. The decided cases illuminate that the attitude of our domestic system towards customary international law is in a state of flux. Initially, the dominant British approach to international custom was the doctrine of incorporation where customary rules are regarded part of the land. According to Lord Talbot in Buvot v Barbuit  [34]  the law of nations in its full extent was part of the law of England. This principle was restated twenty-seven years later by Lord Mansfield in Triquet v Bath.  [35]   On the contrary, nineteenth century cases appear to displace the doctrine of incorporation by that of transformation.  [36]  In fact, the case of R v Keyn  [37]  demonstrates that a customary rule can become a rule of English law only if it is translated into the latter by statute or a judicial decision. Conversely, this judgment is considered to be equivocal since it dealt primarily with the existence of a rule of international law relating to jurisdiction in the territorial sea.  [38]  Mention should be also made to Lord Atkins speech in Chung Chi Cheung v The King  [39]  where he highlighted that international law is invalid unless adopted by the English law.  [40]  However, O Keefe claims that Lord Atkins statement did not mean that customary international law was not part of our municipal law.  [41]  Instead, his Lordship tried to pass the message that international custom does not take precedence over English law and it is admitted in our domestic legal system where it can play a vital role. It is axiomatic that the approach of the English judiciary to customary international law is relatively unstable. Although, Lord Denning followed the dualistic-transformation doctrine in R v Secretary of State for the Home Department ex parte Thakrar  [42]  , he changed his mind in Trendtex Trading Corporation Ltd v Central Bank of Nigeria  [43]  where he adopted the incorporation approach. This was because he believed that jus gentium does not recognise stare decisis and the latter doctrine would help English law to react to the frequent changes that customary international law undergoes. White feels that transformation is inflexible and the decision in Trendtex is welcome as it helps English courts to be more responsive to international law.  [44]  Yet, it ought to be clarified that in a case of conflict between international custom and an Act of Parliament, the statute prevails.  [45]   On balance, by bearing in mind the seminal decision in Trendtex which was followed by Maclaine Watson v Department of Trade and Industry  [46]  , OKeefe correctly deduces that dualism is the principal principle in English law which just permits customary international law a limited direct applicability.  [47]  Alternatively, in the light of recent cases he might have second thoughts for his conclusion. In particular, Lord Bingham in R v Jones  [48]  was unwilling to accept that international law is a part of our domestic legal system. As an alternative, he preferred that perspective expressed by Brierly that international law is one of the sources of English law.  [49]  Despite the fact that it was acknowledged that international custom may be assimilated into domestic criminal law, the incorporation approach was not applied to the international law crime of aggression.  [50]  Aside from this, in Al-Haq v Secretary of State for Foreign and Commonwealth Affairs   [51]  Cranston J recognised that customary international law applied in municipal law without transposition is inconsistent with our dualist system.  [52]   Consequently, it is clear that the question whether international custom ought to be incorporated into domestic law is tremendously complicated and according to Pill LJ is not susceptible to a simple or general answer.  [53]  Obviously, there are doubts even about the restricted direct applicability of customary international law in the English legal system. With regard to the role of the English judiciary, Capps supports that it acts as a gatekeeper between the international and our domestic legal order.  [54]   Non-justiciability issue and the relation of executive and judiciary A brief reference on the doctrine of non-justiciability will explain why the domestic legal system might be distant from the international legal order. It is inescapable that there might be questions of international law that English courts are not competent to answer. For example, in Buttes Gas and Oil Co v Hammer (No. 3)  [55]  , which concerned a dispute about the territorial waters of Sharjah in the Persia Gulf, an English court did not have the judicial standards to judge the issues of international law. Lord Wilberforce stressed the principle of judicial restraint in adjudicating upon the acts of foreign sovereign states.  [56]  Nevertheless, the non-justiciability rule is subject to exceptions. It is unavoidably inapplicable in instances relating to the transactions of foreign states which infringe international law. In illustration, the case of Kuwait Airways Corporation v Iraqi Airways Company  [57]  showed that an English court could not ignore a breach of inter national law committed by Iraq against Kuwait as far as the violation was acknowledged.  [58]   It should not be omitted that the special nature of international law is reflected in the practice of the British courts which will defer to the executive on certain factual issues. The courts need to seek the guidance of the Foreign Office which produces certificates on the determination of a number of topics such as the sovereign status of a foreign state, the recognition of governments, the commencement and termination of a state of war against another country and the incidence of diplomatic immunity.  [59]  Such certificates are conclusive when they are unambiguous as to facts based on the one voice doctrine where the judiciary and the executive ought to follow the same line on matters relating to foreign affairs.  [60]  In the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Trawnik  [61]  it was maintained that a certificate under the State Immunity Act 1978 is not subject to judicial review unless it constitutes a nullity. On the other hand, it is worth noting that the courts may sometimes go outside the information given in the Foreign Office certificate in their attempt to resolve the issue before them. This was proved in the case of Re Al-Fin Corporations Patent  [62]  where it was held that Foreign Office certificates are not considered as conclusive in the interpretation of statutes or the construction of documents. Conclusion In conclusion, it is plain that there are numerous difficulties raised in this complex area of the interaction of international and municipal law. Nevertheless, the person reading the International News section in a British newspaper will realise that in spite of the preference shown to the dualist approach by the English legal system and its various differences with the international legal apparatus, the two systems trust each other and have some meeting places. As we have seen, the international legal machine takes heed of municipal rules and at the same time in the United Kingdom judicial notice is taken of the rules of public international law. Even though treaty and customary international law need to be exchanged to domestic currency, the English legal order and the law of nations are not completely distinct legal systems and indisputably influence each other. A happy relationship exists between international and domestic law but it will always experience changes.

The English Election System :: essays research papers

The English Election System Once the Queen has appointed a person to the office of Prime Minister, he can remain in office only for so long as he has majority support in the House of Commons. If he is defeated there, he may resign and leave the Queen looking for a new one. According to law the period between general elections must never be more than five years. Within these five years the Prime Minister may choose the date for a general election, this gives him and his party a great advantage, because then he can choose a time when the opinion is high for his party. The Government A Brittish Government consists of the Prime Minister and other ministers, all of whom are collectively responsible for every part of the Government ´s administration. The ministers are all choosed by the Queen, but they are choosed entirely on the PM ´s advice. All the ministers must be members of either the House of Commons or the House of Lords, and a minister may only speak in the house of which he is a member. Some of the ministers and the offices have special titles such as the "Minister of Agriculture" and as the "Chancellor of the Exchequer. A politicial assistant to a minister is called, for example, the "Parliamentary Secretary to the Ministry of Agriculture". If the Minister ´s title is "Secretary of State" his assistant is called for example, of "Parliamentary Under-Secretary of State for Scotland". The Cabinet consists of the heads of the most important Departments together with a few ministers without departments. The PM decides which ministers will be included, but there is some, like the Foreign Secretary, whom he could not leave out. The number of members has varied in peacetime between 15-23. The Government is a wider term including ministers, ministers of state and junior ministers, plus 4 legal members and about twelve Government whips. The PM lives and works at No. 10 Downing Street. This is a pretty large house in a small street off Whitehall, where many of the departments have their offices, a very short distance from the Houses of Parliament. One of the rooms in the PM ´s house is the Cabinet-Room. This is where the Cabinet-Members meets usually once a week, but sometimes more often. The Cabinet itself is not recognized by any former law and it has no formal powers, but only real powers. It takes the effective

All Quiet on the Western Front Literary Devices essay Essay

The earth, as in the soil beneath our feet, is taken for granted every single day, but never by a soldier on the front lines. Erich Maria Remarque explains this through his character Paul Bà ¤umer in the excerpt of his novel All Quiet on the Western Front. Paul is explaining the effects that war on the front can leave with a soldier, the hopelessness, instinct of an animal, and appreciation for things as simple as the earth that we walk on. While explaining these effects Remarque uses literary and rhetorical devices.Portraying Paul’s sense of being helpless and trapped as an effect of being on the battle front, Remarque uses various literary devices to describe Paul’s feelings. The narrator Paul states, â€Å"To me the front is a mysterious whirlpool† a â€Å"vortex sucking me†¦into itself.† This extended metaphor expresses the hopelessness that the war leaves with soldier. The vortex symbolizes the loss of optimism in the weary soldiers and how it is â€Å"irresistibly† and â€Å"inescapably† happening. This paragraph of the passage could also be an example of how Remarque uses parallelism to tell of the effects.The front not only causes the soldiers to gain a muffled mind, but to also gain gratitude. While explaining the appreciation they get when fighting to survive at the front, Remarque uses different types of imagery to express their deep feeling towards the ground. â€Å"To no man doe the earth mean so much as to a soldier†. He personifies the earth by calling it â€Å"her† and creates an image of the earth as a mother figure, protecting and sheltering the soldiers. Then, later in the passage, Remarque writes as if Paul is praising the ground as a God, saying that it has â€Å"redeemed them† and â€Å"granted the soldiers a new life†. This can be taken as a dose overboard, however, this image the soldiers have devised of the earth in their mind, â€Å"she† has saved them, physically and religiously. Concluding the effects that Remarque characterizes in this portion of the novel, He describes the sudden takeover of animalistic instinct while in battle. This instinct is the difference between life and death. Paul tells that a man will find himself on the ground, right at the moment that a shell flies over him. Yet he cannot remember if he had heard it or what had happened â€Å"one cannot explain it.† This is the instinct that appears when your mind has departed â€Å"It is this other, this second sight in us.† Paul claims that this is what saves them. A literary device used near the end was when Paul says â€Å"†¦there would not be one man alive from Flanders to the Vosges.† This is a hyperbole, because it is an exaggeration. Remarque continues the idea of animal instinct using an oxymoron: the soldiers come to the front and â€Å"become on the instant human animals.† He suggests that these soldiers retain the shape of humanity but have developed animal-like qualities in order to survive. This is a tragic consequence of war- the loss of humanity and civility. In the end Paul learns that he will never be the same. The profound transformations that he has endured during while being at the front have scared him beyond repair. This amplifies the hopelessness they feel, because if they do not die physically they will die emotionally. Remarque uses literary devices throughout the passage to emphasize to affect how the text is read. He uses personification multiple times throughout the paragraphs. When speaking of the soldier’s appreciation of the earth, Remarque personifies the earth and they develop strong feelings towards it. â€Å"O Earth, thou grantest us the great resisting surge of new-won life.† The overall message of the expert is the affect of the war on a soldiers mind. He will do anything to survive, he will find new recognition, and he will even give up all of his faith.

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