Introduction
There has been an increase in the intensity of the relationship between domestic law and international law (Samaha, 2010). The above topic has led into a burning debate concerning how different domestic legal systems should face challenges in arising because of incorporation of international norms/laws. Different nations have their own jurisdictions governed by their constitutions. By definition, jurisdiction refers to practical authority given to a formal legal body defining specific areas of responsibility within which that the body can administer justice. Different nations have different jurisdictions depending on their constitutional demands. For example, in United States, the federal government has jurisdiction unto itself because it governs the whole country. In addition, jurisdiction defines an origin of a court’s authority whereby different courts within a nation can only execute powers within a specified type of cases.
In a constitutional democracy, the legislatures must have a law process they have to adhere to while taking into consideration the requirements of the international law. The process demands that a legislature develop jurisdictions that define the legal status of a nation in the absence of international law. International law has no limitation from diplomatic relations between states and countries because it aims at regulating matters that initially belonged to domestic jurisdiction of states. Such matters include the way in which the state deals with issues related to greenhouse gases emission, and control of its own population. These two main issues forces the international law makers chip in because they affect countries’ economic activities (Slaughter and Burke-White, 2006). This analysis deals with the main reasons behind various jurisdictions taking varying approaches to implement international law in their domestic law.
Analysis
The following reasons describe the possible impact of international law on domestic systems of law. Firstly, the international law’s future is believed to be under the domestic law. Constitution drafters have tried to dilute the traditional practices that appeared between the international law and national law. Their aim was to make international law influence the results of national politics so that all functions and objectives of domestic laws adhere to the international norms. In so doing, the international law, which has minimal effects, could have a solution to the above named challenges using the domestic law. According to Bernstorff & Dunlap (2010), the international law has the capacity of resolving all matters that occur within the domestic jurisdiction irrespective of their nature. International law has the capacity to regulate all domestic matters, those regulated by national law, although constitutional questions regarding the form of government, labor problems and social policies and many others arise (Hall, 2005).
For example, the human rights movements are leading a strategy to determine the legal effects of international law on domestic law. The issue of international law interfering with the legal matters of domestic laws has been observed in many nations. The decision of domestic legal constitution determines the application of international law by national courts. Presently, the incorporation of international law by the state into municipal legal systems has not been legalized. Therefore, the state has an obligation to prevent the international law from interfering with domestic legal matters. For instance, the Uniform Child Custody Jurisdiction Act is a domestic law introduced by the American government to cater for children convicted of crimes. The act takes care of children who have not lived in the state for a set period and commits some crimes and there is no involvement whatsoever of international law (Spector, 1998). Legal limits have the benefit of defining the authority that the state has. They act as guidelines of preventing agents from violating the established basic rights in a given nation. In a constitutional democracy, legal limits find foundation on the fact that the power inherent within the law is more superior to an individual or group power.
The fact that international laws was designed mainly for international public functions of states forms another reason why different jurisdictions take different approaches to implement international laws in their domestic law. The following aspect makes most jurisdictions prefer dealing with legal matters using their own constitutional laws and avoiding international laws. The supremacy of a nation gives it a chance to incorporate ratified treaties, and place them where national courts can apply them. However, the field of human rights brings many debates when it comes to the relationship between international laws and domestic laws (Agarwal, 2002). For example, Filartiga v. Pena Irala case demonstrated a violation of human rights in U.S. In this case, the U.S. faced challenges authorizing the specific human rights violation act shown because it was a case between a Paraguayan national against another Paraguayan. Paraguay takes different legal actions against such acts of human rights violation, but with the case set at U.S., the government had to take a different international perspective (Filártiga v. Peña-Irala, n.d).
On the other hand, international human rights laws rely on national courts because of the impact of international law on domestic law. Different nations take varying perspectives, different from that of international law while implementing certain legal authorities because the international tribunals make irrelevant decisions. Legal limits in a constitutional democracy depict a framework of laws, which applies to all member states (U.S. Department of Justice, 2013). The state imposes strong restrictions to the international law once an attempt to enter the domestic legal system appears. For instance, U.S. adopted different legislation that contradicts the international rule, whereas, U.K. also came up with a different legal structure that favored its constitution (U.S. Department of Justice, 2013).
According to Geck’s theory, international law is a law of coordination founded on the principle of consensus. The law was formulated long time ago, and from then, new states and nations have emerged that never took part in the formulation of international law. The emergence of these new states and nations is another reason why various jurisdictions take different perspectives in implementing international law into domestic law. States that were not formed during the time of international law formulation claim that their legal framework is not compatible to the international law system and must practice different approaches while implementing their legal authorities domestically. The conflict between the statutes of different states and their convections contributes to the conflicts arising between the present legislations and the formal international law legislations. Article 4(1) of the U.S. Convection provides that law from the moment of conception shall protect the right to life. The following act contradicts with some international law acts that provide right to abortion (Krensky, 2012).
For example, the European Community tested the new Yugoslav Republics as new states on their ability to respect the international law. The findings indicated that the new states could not adhere to the international law standards because of they were not present when those rules were being passed. In addition, the political entities of the new states did not abide by some rights and obligations of the international law (Allcock, 2000; 33-34). Generally, such States only practice different jurisdictions from other states even if they belong to the same member state, European Community. On another example, the Inter-American court demonstrates a totally the different between international law and domestic law according to how various courts give judgments on various cases. The judgment given by the American courts on the Almonacid Arellano case on September 26, 2006 was a clear indication of how the state took national approach and not an international approach. There was an incompatibility of the Amnesty Laws of 1978 as defined by the international law because the court decided to go its own way according to the legal constitution because the present rules affected the American convection (U.S. Department of Justice, 2006).
Conclusion
The above analysis has cleared indicated that the future of international law is not domestic. It has been seen that different jurisdictions have different approaches while implementing the international law into their domestic law because of the following reasons. Firstly, most nations try to build their own legal authorities without incorporating the international law. Secondly, the international law is seen as a legal structure for international public functions only, and finally, most new states were formed after the formulation of the international law making them implement their own rules. Following the above analysis, there is a clear indication that power states have greatly benefited from the international law because they have the opportunity to change their jurisdiction. States whose democracy is poor suffer exploitation from international courts not because they cannot sustain their cases, but they have no power to resist colonialism.
References
Agarwal, H. O. (2002). International law & human rights (8th ed.). Allahabad: Central Law Publications.
Allcock, J. B. (2000). Explaining Yugoslavia. New York: Columbia University Press.
Bernstorff, J. v., & Dunlap, T. (2010). The public international law theory of Hans Kelsen:
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Hall, J. (2005). General Principles Of Criminal Law. The Second Edition. New Jersey; Clark.
Krensky, S. (2012). The Constitution. New York: Marshall Cavendish Benchmark.
Filártiga v. Peña-Irala. (n.d.). Center for Constitution RSS. Retrieved November 9, 2013, from http://ccrjustice.org/ourcases/past-cases/fil%C3%A1rtiga-v.-pe%C3%B1-irala
Samaha, J. (2010). Criminal Law. The Tenth Edition. Wadsworth: Cengage Learning.
Slaughter and Burke-White. (2006). “The future of international law is domestic (or, the European Way of Law)”, Harvard International Law Journal, pp. 327-28.
Spector, R.G. (1998). “Uniform Child-Custody Jurisdiction and Enforcement Act (with Prefatory Note and Comments)”. Family Law Quarterly 32(2):301–384
U.S. Department of Justice. (2006). Case of Almonacid-Arellano et al. v. Chile preliminary objections, merits, reparations and costs. Judgment of September 26, 2006.. San José, Costa Rica: Secretaria de la Corte.
