The origin of international law Does international law

The origin of international law Does international law origin from domestic law? n Is the existence of international law dependent on the existence of domestic law? n To what extent is international law a ”copy” of domestic legal systems? n To what extent should we draw parallels between the systems? n Ole Kr. Fauchald 2/27/2021 1

Distinct areas of law The relationship between states as such n State immunity n Law of treaties n State responsibility n State sovereignty and non-intervention n The law of international organizations n Ole Kr. Fauchald 2/27/2021 2

Areas of overlap Self-executing treaties n Human rights law n International criminal law n International investment law n International trade n International transportation n Intellectual property rights n International environmental law (to some extent) n Ole Kr. Fauchald 2/27/2021 3

International law -> domestic law n Dualism and monism ä ä ä n The historical context of the concepts: Monism – dualism – monism. How are the concepts used today? Determined in domestic law The problem of federal states Making international law part of the domestic system ä ä Incorporation, transformation, sector monism, interpreting domestic rules Giving actors rights within the domestic system – closing the gap Ole Kr. Fauchald 2/27/2021 4

Explain the system of your own country to the person besides you! n n Do you have explicit rules on the relationship between int’l law and domestic law? Where? How does your system comply with this: ä n ”For the purpose of ensuring a more complete and effective implementation of international law, preference should always be given to the legislative ad hoc incorporation of international rules whenever they turn out to be non selfexecuting. Conversely, whenever international rules are self -executing, it would be preferable to resort to the automatic incorporation of international rules. ” (Cassese pp. 221 -2) What is the rank of international law? Ole Kr. Fauchald 2/27/2021 5

International law taking over? n Establishment of legislative functions? ä n Establishment of judicial functions? ä ä n International institutions taking on their own life Appeals from domestic systems Forum shopping – circumventing domestic systems Establishment of executiv functions, i. e. administrative decision-making systems? ä ä ä Intellectual property rights Postal systems Standard-setting Ole Kr. Fauchald 2/27/2021 6

Domestic law -> international law n n Determination of customary law Interpretation of treaty law General principles of law Can domestic law constitute an excuse for not complying with international law? ä ä ä VCLT art. 27 Is a state responsible for acts regardless of domestic regulation of the issue? Is a state responsible for all acts or omissions of public authorities regardless of division of competences? Ole Kr. Fauchald 2/27/2021 7