It is therefore impossible for the Government of the United States to reach across its boundary into the dominion of another government and annex that government or persons or property therein. But the United States may do so under the treaty making power [31 Cong. It does not bring that country within our boundaries.
It does not consummate itself [31 Cong. There is no treaty; no one can reasonably aver that there is a treaty. No treaty can exist unless it has attached to it not merely acquiescence of those from whom it emanates as a proposal.
It must be accepted—joined in by the other party. This has not been done. There is therefore, no treaty [31 Cong.
Appendix, June 21, ]. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act…Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.
Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. Aha Moderator Linda Colburn read a list of publications and articles that Magallanes has written on many subjects covering international law as well as some of her educational credentials that include, Yale Law School, , Administer to the New Zealand Bar, , Victoria University of Wellington, Magallanes admits to not knowing the history of Hawaii, but also states that she does know the law.
According to Dr. Sai the occupation began in when the U. Aloha kuniole, what segment of the series is the speaker introduced? I would like to view it without having to watch the whole show. My apology for the wrong channel, it is channel 52, Olelo on demand. Regardless on the view of occupation, I would have hoped a participant would have asked the most obvious question to an attorney at the aha. Is there legal recourse within U. Supreme Court to issue an injunction against the ballots being counted.
A second kind of constitution is an unwritten constitution for example such as in England, New Zealand, Canada and Israel. These countries have no written constitution in one single document, but rather a number of Basic Laws, that are primary laws guiding society. In the absence of a formal codified set of laws, tradition and existing legal and political systems may provide enduring constitutional principles.
If the rights of disabled persons have been recognised within the Constitution, the political powers of the nation must respect them, as long as the Constitution is not modified. There is, therefore, a supremacy of Constitutional Law over any other inconsistent law which voids any law or any act of Government which violates the Constitution.
An international treaty seldom stipulates how the States should implement its provisions, leaving it to each State to decide how that obligation will be executed on the domestic plane. One notable exception involves the right of access and to effective remedies guaranteed in human rights treaties. There is no rule of general international law that all treaties must have effect in domestic law. Many treaties have no domestic legal consequences and do not require implementation through the national legal systems of the States Parties.
The freedom to choose some methods of implementation is also guaranteed in the International Covenant on Civil and Political Rights , article 2: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.
Four main methods are generally available for the implementation of international human rights instruments in domestic law: Direct incorporation of rights recognised in the international instruments into a bill of rights in the national legal order; Enactment of different legislative measures in the civil, criminal and administrative laws to give effect to the different rights recognised in human rights instruments; Self-executing operation of international human rights instruments in the national legal order; and Indirect incorporation as aids to interpret other law.
For States that are not Parties to the relevant human rights treaties, generally accepted standards of human rights are legally binding upon them according to customary international law. The relationship of international law to municipal law rests on two principal schools of law. The dualists regard international law and municipal law as separate and municipal law can apply international law only when it has been incorporated into municipal law. Incorporationcan result from an act of parliament or other political act, or given effect by the courts.
On the other hand, monists regard international law and municipal law as parts of a single legal system. According to this theory, municipal law is subservient to international law. England is an example of the dualist modelof international law. A treaty has no effect in English domestic law, unless it is made part of it. Once a treaty is incorporated into English Law, it is fully enforceable in the courts. But the fact that a treaty is part of the English Law will not necessarily mean that individuals have a cause of action arising from the treaty.
There will only be incorporation if the treaty changes domestic law, or if it requires the raising of revenue or alteration of taxation. As in the case of many treaties in the field of foreign relations, ratification is a formality and incorporation is not required. An unincorporated treaty has no formal standing in English Law.
If it conflicts with statute or common law, the latter will prevail. An incorporated treaty becomes part of the law of the land, but it has no special position. The relationship between incorporated treaties and other legislation is the same as the relationship of two statutes to each other.
Parliament is supreme in the sense that it can pass legislation that is inconsistent with any international treaty obligations which, nevertheless binds the United Kingdom at the international level. An example of a model is the Netherlands legal system.
For the operation of treaties and the orders of international organizations within the legal system, no national order is required to convert international law into national law. International law operates automatically, as such, within the national legal system.
Therefore, certain treaties are considered constitutional law where they limit or extend the powers of Dutch offices based on national constitutional law. Finally, between these two models there are a number of variants; however, many of them are only theoretical constructions. In the United States, for instance, treaties are expressly supreme law of the land and can be self-operative, creating individual rights and duties in domestic legal processes.
In the United States, ratified human rights treaties and customary international law are both law of the land.
Supreme Court,[ 17 ] the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress. In the U. Such treaties, therefore, are not self-executing, even though they are ratified and are part of the law of the land according to the Supremacy Clause.
Since a private right is largely contingent on the existence of a right of action, additional legislation is needed to grant individuals private rights pursuant to such treaties. Self-executing treaty doctrine stipulates that not even the few U. That being said, in general, the instruments constitutionalized by Article 22 cannot be countered by any other legal norm, nor can their highest-rank status be dismissed.
Second, although the constitution establishes that the instruments laid down in Article 22 will have supremacy over domestic laws, one may not find this logical. Third, one can ask why Article 22 provides for this level of inclusive constitutionalization of treaties. First of all, the constitutionalization of the instruments concerned has been made a duty by the Ahtisaari Plan, which in turn was to be transformed into a constitutional norm — as happened.
Hence, we argue that, given the current incomplete international legal capacity of the state of Kosovo, Marti Ahtisaari was aware that Kosovo could not, for a certain period, become a party to these treaties — and hence was unable to undertake such legal obligations internationally. As a result, to oblige the Kosovo polity under these instruments, Ahtisaari saw the option of constitutionalizing them, which is what indeed happened.
Therefore, the very inclusive constitutionalization of treaties that appears in Article 22 is just a different way of binding Kosovo to the provisions of these treaties—having regard to the inability of Kosovo to be a party of the treaties concerned for the time being. The paper surveyed and analyzed the relationship between international law and national law in the case of Kosovo. By and large, the paper viewed this relationship from a constitutional law perspective, and referenced a large portion of international law literature.
More specifically, the paper questioned three issues, namely: the relationship between binding treaties and national law in the case of Kosovo; the relationship between customary international law and national law in the case of Kosovo; and the relationship between international law and national law in the human rights sphere.
Briefly, the paper concludes that the Constitution of Kosovo has embraced a monist model of relationship between international and national law. In terms of the relationship between ratified treaties and national law, the Constitution of Kosovo has recognized the incorporation of treaties in the domestic legal order, placing them above national laws but subordinating them to the constitution.
In terms of the relationship between customary international law and national law, the Constitution of Kosovo has recognized the incorporation of international legal customs in the domestic legal order—though not explicitly—yet the direct applicability of customary international law remains unsolved, although the constitution positions this above domestic laws.
In terms of the relationship between international law and national law in the sphere of human rights, the paper concludes that, first of all, the Constitution of Kosovo constitutionalizes numerous international human rights instruments, thus effectively extending to the latter the legal power on the level of the constitution.
The paper also asserts that the constitution makes a direct linkage between ECtHR case-law and Kosovo's courts, obliging the latter to interpret and issue rulings in line with the ECtHR case law.
This, as a result, leads to the conclusion that the catalogue of human rights guaranteed by the Constitution of Kosovo is not exhaustive, hence proving that the Constitution of Kosovo is very rich in terms of its recognition of international human rights law. Finally, the paper concludes that the Constitution of Kosovo offers a very privileged position to international human rights law, and its friendly relationship with international law—both in terms of treaty law and international legal customary law—cannot be contested.
Thus, the regulation of the relationship concerned, as such, suggests that Kosovo's national law remains enormously open to international law. Lauterpacht, for instance, insists that the relationship between international law and national law should be governed by international law, as opposed to national constitutional law.
See Lauterpacht in A. C ENT. For instance, see R. See , for instance, J. Brierly, International Law in England , 51 L. Hilary Charlesworth et al.
See also Lauterpacht in Maniruzzaman, supra note 1, at In dualist systems, such as that of England, the treaty becomes internationally binding after being signed by the Queen, however it only becomes binding domestically after being adopted in the form of statute by the parliament See M ALANCZUK , supra note From the international law perspective, a treaty is an agreement between two or more states governed by the international law.
See for this the Vienna Convention on the Law of Treaties 1[a]. Given the deep decentralization process in Kosovo, based in the Ahtisaarian Settlement, however, one could argue that the Constitution of the Republic of Kosovo grants treaty-making power solely to the central institutions of the polity. The Constitution of Russia, for instance, accepts the incorporation of a treaty in the domestic legal order without the need to publish it in the official gazette.
This might affect the position of those who are subject to the treaty; see G. Most post-communist European countries have followed this logic. See Stein, supra note 20, at See the Constitution of Poland for a similar, but more regulated, approach to this issue.
See also: M. This argument follows the argumentation that Danilenko has developed over the Russian Constitution. See Danilenko, supra note 27, at United States courts, for instance, are used to considering most treaties as non-self-applicable. In this regard, many courts follow the statement of the government when judging whether a treaty is self-applicable or not id. By contrast with the United States where the courts are used to following the intent of the government as regards the qualification of a treaty as self-applicable or not, South African courts are used to giving an explicit answer by refraining from involving the government's assertion in this context.
This has been ensured through a constitutional provision which obliges South African courts to follow an interpretation of treaties that favors international law, as opposed to national law; see John Dugard, International Law and the South African Constitution , 8 E UR. See the French experience in P. Many think that the preemptive control of a treaty by the constitutional court generates legal certainty, since it makes sure that the treaty being ratified has no conflict with the constitution such in the cases of Spain and France.
Some constitutions, like those of Germany and Italy, allow the constitutional court to exercise a repressive control of a treaty's constitutionality, by challenging the domestic act of ratification. Most constitutions allow only the preemptive constitutional control of treaties, such as that of Russia.
See G. Danilenko, supra note 27, at The Constitution of Croatia, in the same vein, grants no jurisdiction to the Constitutional Court for reviewing the constitutionality of treaties. This is very similar to the Kosovo Constitution. See S. See the Kosovo Assembly official website at www. Although a constitutional court can ban an unconstitutional treaty, the act of annulment has a domestic legal effect and it does not dismiss the international obligation of the state concerning the application of the treaty.
See J. In this case, providing room for banning a treaty domestically would not a fortiori dismiss the international liability of the state, and the power to do so might be misused for domestic political aims.
The power to annul the treaty in a repressive manner would also lead to the abandonment of the Vienna Convention on the Law of Treaties principles. See this argument applied to the Serbian Constitution: H. See also: J. See articles 26 and 27 of the Vienna Convention on the Law of Treaties. See an analogue explanation in the case of Hungarian constitutional review B.
The Constitution of Albania, for instance, provides to the Albanian Constitutional Court the power o control the consistency of laws with the constitution and international treaties see the Constitution of Albania, Art.
If this power would have been provided for the Kosovo's Constitutional Court, one would have been able to argue that the constitutional mechanism for assuring the supremacy of treaties over inconsistent laws is in place. But if a provision of international law prescribes a certain behaviour, no feature of the domestic legal system can be invoked as a justification for non-compliance. Most Western European countries allow customary international law to form part of their domestic law.
Nicaragua v. USA Merits , I. This argument is in harmony with the Economides view on customary international law. See C. See Benvenisti, supra note 32, at Respecting human rights is a basic duty under public international law. See A. United States courts, as a comparison, usually hesitate to enforce international human rights law unreservedly — hence hesitating to acknowledge its direct penetration within domestic law — as opposed to other treaties.
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Volume 9. Article Contents Abstract. A background to the constitution drafting process in Kosovo and the influence of international law. The relationship between international and national law: What is all the fuss about?
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