The document discusses various approaches to resolving the problem of anarchy in the international system by strengthening the relationship between international and domestic law. It examines theories of how international law can be incorporated into municipal legal systems, such as dualism and monism. It also explores puzzles around standing, enforcement, and the roles of international courts and domestic courts in applying international agreements. Key debates evaluated include the practice in international courts, how international law is treated in municipal courts, and the sources and scope of authority for the International Court of Justice.
RELATION BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW.pptxanvithaav
These slides answer the question what is the relation between Municipal law and International law? and also various theories which distinguishes Municipal law with International law.
Public International Law Vs. Private International LawRaveesha Gupta
This document provides an overview of public international law and private international law. It defines public international law as governing relations between states, covering areas like war, peace, diplomacy, human rights, and international organizations. Private international law deals with cases that involve foreign elements, raising issues of applying foreign law or involving foreign courts. The document then discusses sources, subjects, jurisdiction, and current trends in both public and private international law.
Public international law vs private international lawWajid Ali Kharal
This document provides an overview of public international law and private international law. It defines public international law as governing relations between states, covering areas like war, peace, diplomacy, human rights, and international organizations. Private international law deals with cases that involve foreign elements, raising issues of applying foreign law or involving foreign courts. The document then discusses sources, subjects, jurisdiction, and current trends in both public and private international law.
This document defines international law and discusses its main sources. It begins by providing definitions of international law from several jurists. It then distinguishes between the two main kinds of international law: public and private. Public international law regulates relations between states and other entities, while private international law determines which law applies in cases involving foreign elements. The document also discusses whether international law can truly be considered law given its lack of enforcement mechanisms compared to domestic law. Finally, it outlines the six main sources of international law according to the ICJ statute: treaties, customs, general principles of law, judicial decisions, writings of jurists, and other sources.
The study Notes on International Law which I prepared for examinations when I was student of LL.B. II in 2006. Hope it may be helpful in understanding the basics of the subject. But after studying it, the students should through the text books available on the subject.....Thanks
This document discusses the relationship between international law (IL) and municipal law from both a theoretical and practical perspective. Theoretically, there are two main views: dualism, which sees IL and municipal law as separate systems, and monism, which sees them as part of the same legal order. Practically, conflicts can arise when the two regulate the same subject and courts must decide whether to apply IL or municipal law. The document also examines how different countries, including the UK and Malaysia, approach the incorporation or transformation of IL into their municipal legal systems through legislation, judicial decisions, and constitutional frameworks.
International law -Relationship between International Law and Municipal LawBangladesh Law Digest ☑
International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law.
Courtesy: Bangladesh Law Digest
Website: www.bdlawdigest.org
https://www.twitter.com/bdlawdigest
https://www.plus.google.com/+BdlawdigestOrg1
https://www.linkedin.com/in/bdlawdigest1
RELATION BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW.pptxanvithaav
These slides answer the question what is the relation between Municipal law and International law? and also various theories which distinguishes Municipal law with International law.
Public International Law Vs. Private International LawRaveesha Gupta
This document provides an overview of public international law and private international law. It defines public international law as governing relations between states, covering areas like war, peace, diplomacy, human rights, and international organizations. Private international law deals with cases that involve foreign elements, raising issues of applying foreign law or involving foreign courts. The document then discusses sources, subjects, jurisdiction, and current trends in both public and private international law.
Public international law vs private international lawWajid Ali Kharal
This document provides an overview of public international law and private international law. It defines public international law as governing relations between states, covering areas like war, peace, diplomacy, human rights, and international organizations. Private international law deals with cases that involve foreign elements, raising issues of applying foreign law or involving foreign courts. The document then discusses sources, subjects, jurisdiction, and current trends in both public and private international law.
This document defines international law and discusses its main sources. It begins by providing definitions of international law from several jurists. It then distinguishes between the two main kinds of international law: public and private. Public international law regulates relations between states and other entities, while private international law determines which law applies in cases involving foreign elements. The document also discusses whether international law can truly be considered law given its lack of enforcement mechanisms compared to domestic law. Finally, it outlines the six main sources of international law according to the ICJ statute: treaties, customs, general principles of law, judicial decisions, writings of jurists, and other sources.
The study Notes on International Law which I prepared for examinations when I was student of LL.B. II in 2006. Hope it may be helpful in understanding the basics of the subject. But after studying it, the students should through the text books available on the subject.....Thanks
This document discusses the relationship between international law (IL) and municipal law from both a theoretical and practical perspective. Theoretically, there are two main views: dualism, which sees IL and municipal law as separate systems, and monism, which sees them as part of the same legal order. Practically, conflicts can arise when the two regulate the same subject and courts must decide whether to apply IL or municipal law. The document also examines how different countries, including the UK and Malaysia, approach the incorporation or transformation of IL into their municipal legal systems through legislation, judicial decisions, and constitutional frameworks.
International law -Relationship between International Law and Municipal LawBangladesh Law Digest ☑
International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law.
Courtesy: Bangladesh Law Digest
Website: www.bdlawdigest.org
https://www.twitter.com/bdlawdigest
https://www.plus.google.com/+BdlawdigestOrg1
https://www.linkedin.com/in/bdlawdigest1
This document provides an overview of Hong Kong's legal system, including its sources of law and key components. It notes that Hong Kong follows a common law system with laws derived from local legislation and precedents, as well as English common law. The document also discusses the Basic Law as Hong Kong's constitutional document, and outlines different areas of law like criminal law, civil law, public law and private law. It provides context on Hong Kong's legal history and transition to a special administrative region of China in 1997.
This document discusses private international law and conflict of laws. It begins by explaining the differences between domicile and residence, and between international law and national law. It then discusses public international law, private international law, and supranational law. The document presents several case studies and questions about them to illustrate conflict of laws issues. It explains key concepts in private international law like jurisdiction, choice of law, and recognition and enforcement of foreign judgments. It also discusses areas of law that involve conflict of laws, the stages in a conflict case, and examples of choice of law rules.
Understanding International Law in International RelationHAFIZUDIN YAHAYA
International law refers to the customs, norms, principles and rules that establish binding obligations among states and other international actors. The main sources of international law are conventions, treaties, customs, and judicial decisions. However, international law has weaknesses as well, such as vague obligations from treaties, lack of an effective legal enforcement system, and powerful states' ability to ignore laws that conflict with their interests. Nonetheless, international law still has enduring value in that states usually comply due to identity, self-interest, or fear of reprisals, and it can shape norms and identities over time.
International law is defined as the customs, norms, principles, and rules that establish binding obligations among states and other international actors. There are four main sources of international law: conventions, treaties, customs, and general principles recognized by states. However, international law has weaknesses including vague obligations from treaties, lack of an effective legal system for enforcement, and powerful states' ability to ignore laws that conflict with their interests. Nonetheless, international law still has enduring value by shaping state identities and norms, and states usually comply due to self-interest, identity, or possibility of reprisals.
conflict of laws(private international law power point.TedyKassa
This document provides an introduction to private international law (PIL), also known as conflict of laws. It defines PIL and discusses its nature, functions, scope and sources. Theories of conflict of laws are also introduced, including the territorial theory of law and the theory of comity. The territorial theory proposes that laws have authority within state borders and foreign law is applied through comity between states. The theory of comity argues that applying foreign law avoids disregarding another state's sovereignty. However, comity is a vague concept that does not clearly explain why foreign law should be chosen.
This document discusses the nature and scope of private international law (also known as conflict of laws). It notes that courts sometimes must handle cases with foreign elements, such as parties from different countries or contracts signed in another jurisdiction. In these situations, courts must determine if they have jurisdiction, whether to apply foreign or domestic law, and if/when to recognize foreign judgments. There are no uniform rules on these issues internationally. The document outlines some of the key questions that private international law addresses and notes that uniformity of laws across borders would reduce conflicts but is difficult to achieve in practice.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
Essay Questions Exam #1 Due Sunday Oct 19th @ 10pm Emmanuel .docxbridgelandying
Essay Questions Exam #1
Due Sunday Oct 19th @ 10pm
Emmanuel
1. What are the differences between domestic law and international law? What are the sources for international law?
Domestic law is enforced by legit government. Codified by a legitimate government. Domestic law is dominated by dominated by culture. No true international law
International law – 1) a nation can consent to be bound by international law (agree to a treaty)
2)a convention (comes out of the UN) UN has to be signed by each country- international contract. 3) also consent by custom & practices.
2. What is "enfranchisement"? Discuss the amendments in the US Constitution that applies to
Enfranchisement- to admit to the privileges of a citizen and especially to the right of suffrage
Amendments
· 15th – blacks
· 19th –deals with women rights
· 23th –Washington D.C. can vote
· 24th – abolish property tax vote
· 26th – Lower voting age to 18 years
David Lopez
3. What is “ethics”? What is “morality”? What are the differences between ethics, morality and the law? Briefly discuss legal obligations, professional obligations and organizational obligations.
As mentioned in chapter 5, at the most basic level, ethics constitutes right or wrong behavior. It is a branch of philosophy focusing on morality and the way moral principles are derived and implemented. Ethics has to do with the fairness, justness, rightness, or wrongness of an action. Morals are influenced by culture or society, however they are principal’s set individually by person to person. Business ethics and business law are closely intertwined because ultimately the law rests on social beliefs about right and wrong behavior in the business world.
4. What is "pleadings"? Discuss the contents of a complaint.
The complaint and answer, taken together, are known as the pleadings.
-The facts showing that the court has subject- matter and personal jurisdiction
-The facts establishing the plaintiff’s basis for relief,
-The remedy the plaintiff is seeking.
5. Discuss at least four reasons why the court will apply equitable remedies. Note:UMIRU
Equitable remedies include specific performance, an injunction, and rescission. Specific performance involves ordering a party to perform an agreement as promised. An injunction is an order to a party to cease engaging in a specific activity or to undo some wrong or injury. Rescission is the cancellation of a contractual obligation.Todays courts will not grant equitable remedies unless the remedy at law (monetary damages )is inadequate.
6. Briefly discuss the major publication, practices and invention that had an influence on the US Constitution.
Ideas from many people and several existing documents, including the Articles of Confederation and Declaration of Independence had major influences on the publication for the constitution.
7. What is evidence law? What criteria must be met for evidence to be admissible.
The law of evidence provides principle ...
This document provides an introduction to the subject of Private International Law (PIL). It defines PIL and outlines its key questions and principles.
1) PIL determines the circumstances under which foreign elements in a legal claim impact jurisdiction, choice of law, and recognition of foreign judgments. It aims to prescribe court competence, determine the law applied to rights, and specify foreign judgment recognition.
2) PIL addresses situations where parties, property, or acts connected to a case involve multiple countries. It determines which country's law applies rather than allowing legal systems to conflict.
3) The three principal questions of PIL are choice of jurisdiction, choice of applicable law, and recognition of foreign judgments. It aims to avoid conflicts and inconvenience
World Legal System and their Salient FeaturesSagar Bansal
TOPICS - COMMON LAW, CIVIL LAW, RELIGION - STATE RELATION, INDIAN LEGAL SYSTEM.
Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Three major legal systems of the world consist of civil law, common law and religious law.
Conflict of laws & international contractsAkash Patel
This document discusses conflict of laws and international contracts. It begins with an introduction that defines conflict of laws as differences between the laws of two or more jurisdictions that can impact the outcome of a case. It then covers several principles of conflict of laws, including party autonomy and sovereignty. Next, it examines understanding conflict of laws in terms of jurisdiction, choice of law, and judgments. The document also discusses approaches to conflict of laws in the U.S. and how national laws can interact. It concludes by noting choices of applicable laws typically involve applying the law of the forum or location of the transaction.
International law and municipal (national) lawHumairaTariq3
International Law governs relations between states, while municipal (national) law governs individuals and entities within a state. There are various theories on the relationship between the two systems of law:
1. The dualist theory views them as separate and distinct legal systems.
2. The monist theory sees them as part of a single legal order with international law superior to national law.
3. The theory of specific adoption holds that international law only applies domestically if specifically adopted by national law.
4. Delegation theory argues states delegate authority to their constitutions through international treaties determining how treaties are implemented domestically.
Extra-Territoriality and the Conflict of Laws The Labour Act (3)Joseph Onele
This document discusses the principle of extraterritoriality and its application to Section 23(1) of Nigeria's Labour Act. It begins by establishing that generally, a state's laws only apply within its own territory. However, there are exceptions where a state seeks to enforce its laws for actions in other jurisdictions.
The document then explores the concept of "extraterritorial application" of statutes. It notes that most legal systems presume statutes do not apply extraterritorially unless expressly stated. It examines this presumption in both common law and US law, citing recent US Supreme Court cases that reaffirmed the presumption. The document aims to consider how the principle of extraterritorial jurisdiction applies to interpreting the scope
Public International Law Assignment.pptxAakchadNath1
The document discusses the relationship between international law and municipal (national) law. It defines the two types of law and presents the monist and dualist theories about their relationship. According to monism, international and municipal law are part of a single legal system. Dualism sees them as separate and autonomous. The document also compares the origins, subjects, and scope of international versus municipal law. It concludes that while the two systems operate separately, they also interact in various issues and international law now also applies to individuals, not just states.
The document discusses how treaties are ratified under US law and whether the Rome Statute is self-executing. It explains that for a treaty to have effect as domestic law, it must be self-executing or require no further legislation. While the Rome Statute does not explicitly require implementing legislation, the US would need to modify extradition laws to fully comply. However, complementarity under the Rome Statute does not require the US to adopt the same crimes into domestic law to claim jurisdiction. The US has incorporated some Rome Statute crimes already in military and domestic law.
Final Examination2BAM 317 Business LawMultiple Cho.docxmydrynan
Final Examination
2
BAM 317 Business Law
Multiple Choice Questions (Enter your answers on the enclosed answer sheet)
1) Which doctrine was overturned in the case of Brown v. Board of Education?
a. the legality of poll taxes
b. the permissibility of separate but equal facilities
c. allowing only white males to vote
d. the acceptability of paying women less than men for comparable work
e. different working hours for male and female factory workers
2) Documents such as the U.S. Constitution, the Magna Carta, and the United Nations Charter
reflect what legal theory?
a. the Natural Law school
b. the Historical school
c. the Sociological school
d. the Analytical school
3) Proponents of which school(s) of jurisprudential thought are unlikely to adhere to precedent in
making decisions?
a. the Sociological school only
b. the Critical Legal Studies school only
c. both the Sociological school and the Critical Legal Studies school
d. neither the Sociological school nor the Critical Legal Studies school
4) Which of the following is most consistent with the Natural Law School of jurisprudence?
a. Law is based on moral and ethical principles of what are right, and it is the job of men
and women, through study, to discover what these principles are.
b. The law is a reflection of society, thus the law must change naturally as society
changes over time.
c. The laws of man are secondary to the laws of nature, and thus the laws of nature take
precedence whenever the laws of man are in conflict with the laws of nature.
d. By applying the rules of logic to specific cases, the logical, or natural, result will be
obtained.
e. Laws must first and foremost respect, preserve, and promote the preservation of the
environment and life in all its forms.
5) What was the only remedy (relief) available in the law courts of England?
a. specific performance
b. fines and imprisonment
c. monetary awards for damages
d. returning the parties to their positions before the dispute arose
3
Final Examination
BAM 317 Business Law
6) Which court was eventually combined with the regular court system?
a. law courts
b. equity courts
c. criminal courts
d. merchant courts
7) What is an equity court’s function?
a. To deal with just the law of merchants.
b. To issue opinions in cases that later set the precedent for similar cases.
c. To investigate the merits of a case and base its decisions on fairness.
d. To issue executive orders.
e. To set state or federal laws between two or more nations.
8) The ability of Native American Indians to conduct gambling operations on Indian reservations:
a. is determined solely by the respective Indian tribe
b. is determined through negotiation by the state and Native Americans
c.is within the control of the federal government because of provisions in the U.S. Consti-
tution
d. has been found by the courts, in many ins ...
Commercial law, also known as business law or corporate law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.[1] It is often considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange, negotiable instruments, contracts and partnership.[2] It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law.In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories.
বাংলাদেশের অর্থনৈতিক সমীক্ষা ২০২৪ [Bangladesh Economic Review 2024 Bangla.pdf] কম্পিউটার , ট্যাব ও স্মার্ট ফোন ভার্সন সহ সম্পূর্ণ বাংলা ই-বুক বা pdf বই " সুচিপত্র ...বুকমার্ক মেনু 🔖 ও হাইপার লিংক মেনু 📝👆 যুক্ত ..
আমাদের সবার জন্য খুব খুব গুরুত্বপূর্ণ একটি বই ..বিসিএস, ব্যাংক, ইউনিভার্সিটি ভর্তি ও যে কোন প্রতিযোগিতা মূলক পরীক্ষার জন্য এর খুব ইম্পরট্যান্ট একটি বিষয় ...তাছাড়া বাংলাদেশের সাম্প্রতিক যে কোন ডাটা বা তথ্য এই বইতে পাবেন ...
তাই একজন নাগরিক হিসাবে এই তথ্য গুলো আপনার জানা প্রয়োজন ...।
বিসিএস ও ব্যাংক এর লিখিত পরীক্ষা ...+এছাড়া মাধ্যমিক ও উচ্চমাধ্যমিকের স্টুডেন্টদের জন্য অনেক কাজে আসবে ...
This document provides an overview of Hong Kong's legal system, including its sources of law and key components. It notes that Hong Kong follows a common law system with laws derived from local legislation and precedents, as well as English common law. The document also discusses the Basic Law as Hong Kong's constitutional document, and outlines different areas of law like criminal law, civil law, public law and private law. It provides context on Hong Kong's legal history and transition to a special administrative region of China in 1997.
This document discusses private international law and conflict of laws. It begins by explaining the differences between domicile and residence, and between international law and national law. It then discusses public international law, private international law, and supranational law. The document presents several case studies and questions about them to illustrate conflict of laws issues. It explains key concepts in private international law like jurisdiction, choice of law, and recognition and enforcement of foreign judgments. It also discusses areas of law that involve conflict of laws, the stages in a conflict case, and examples of choice of law rules.
Understanding International Law in International RelationHAFIZUDIN YAHAYA
International law refers to the customs, norms, principles and rules that establish binding obligations among states and other international actors. The main sources of international law are conventions, treaties, customs, and judicial decisions. However, international law has weaknesses as well, such as vague obligations from treaties, lack of an effective legal enforcement system, and powerful states' ability to ignore laws that conflict with their interests. Nonetheless, international law still has enduring value in that states usually comply due to identity, self-interest, or fear of reprisals, and it can shape norms and identities over time.
International law is defined as the customs, norms, principles, and rules that establish binding obligations among states and other international actors. There are four main sources of international law: conventions, treaties, customs, and general principles recognized by states. However, international law has weaknesses including vague obligations from treaties, lack of an effective legal system for enforcement, and powerful states' ability to ignore laws that conflict with their interests. Nonetheless, international law still has enduring value by shaping state identities and norms, and states usually comply due to self-interest, identity, or possibility of reprisals.
conflict of laws(private international law power point.TedyKassa
This document provides an introduction to private international law (PIL), also known as conflict of laws. It defines PIL and discusses its nature, functions, scope and sources. Theories of conflict of laws are also introduced, including the territorial theory of law and the theory of comity. The territorial theory proposes that laws have authority within state borders and foreign law is applied through comity between states. The theory of comity argues that applying foreign law avoids disregarding another state's sovereignty. However, comity is a vague concept that does not clearly explain why foreign law should be chosen.
This document discusses the nature and scope of private international law (also known as conflict of laws). It notes that courts sometimes must handle cases with foreign elements, such as parties from different countries or contracts signed in another jurisdiction. In these situations, courts must determine if they have jurisdiction, whether to apply foreign or domestic law, and if/when to recognize foreign judgments. There are no uniform rules on these issues internationally. The document outlines some of the key questions that private international law addresses and notes that uniformity of laws across borders would reduce conflicts but is difficult to achieve in practice.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
Essay Questions Exam #1 Due Sunday Oct 19th @ 10pm Emmanuel .docxbridgelandying
Essay Questions Exam #1
Due Sunday Oct 19th @ 10pm
Emmanuel
1. What are the differences between domestic law and international law? What are the sources for international law?
Domestic law is enforced by legit government. Codified by a legitimate government. Domestic law is dominated by dominated by culture. No true international law
International law – 1) a nation can consent to be bound by international law (agree to a treaty)
2)a convention (comes out of the UN) UN has to be signed by each country- international contract. 3) also consent by custom & practices.
2. What is "enfranchisement"? Discuss the amendments in the US Constitution that applies to
Enfranchisement- to admit to the privileges of a citizen and especially to the right of suffrage
Amendments
· 15th – blacks
· 19th –deals with women rights
· 23th –Washington D.C. can vote
· 24th – abolish property tax vote
· 26th – Lower voting age to 18 years
David Lopez
3. What is “ethics”? What is “morality”? What are the differences between ethics, morality and the law? Briefly discuss legal obligations, professional obligations and organizational obligations.
As mentioned in chapter 5, at the most basic level, ethics constitutes right or wrong behavior. It is a branch of philosophy focusing on morality and the way moral principles are derived and implemented. Ethics has to do with the fairness, justness, rightness, or wrongness of an action. Morals are influenced by culture or society, however they are principal’s set individually by person to person. Business ethics and business law are closely intertwined because ultimately the law rests on social beliefs about right and wrong behavior in the business world.
4. What is "pleadings"? Discuss the contents of a complaint.
The complaint and answer, taken together, are known as the pleadings.
-The facts showing that the court has subject- matter and personal jurisdiction
-The facts establishing the plaintiff’s basis for relief,
-The remedy the plaintiff is seeking.
5. Discuss at least four reasons why the court will apply equitable remedies. Note:UMIRU
Equitable remedies include specific performance, an injunction, and rescission. Specific performance involves ordering a party to perform an agreement as promised. An injunction is an order to a party to cease engaging in a specific activity or to undo some wrong or injury. Rescission is the cancellation of a contractual obligation.Todays courts will not grant equitable remedies unless the remedy at law (monetary damages )is inadequate.
6. Briefly discuss the major publication, practices and invention that had an influence on the US Constitution.
Ideas from many people and several existing documents, including the Articles of Confederation and Declaration of Independence had major influences on the publication for the constitution.
7. What is evidence law? What criteria must be met for evidence to be admissible.
The law of evidence provides principle ...
This document provides an introduction to the subject of Private International Law (PIL). It defines PIL and outlines its key questions and principles.
1) PIL determines the circumstances under which foreign elements in a legal claim impact jurisdiction, choice of law, and recognition of foreign judgments. It aims to prescribe court competence, determine the law applied to rights, and specify foreign judgment recognition.
2) PIL addresses situations where parties, property, or acts connected to a case involve multiple countries. It determines which country's law applies rather than allowing legal systems to conflict.
3) The three principal questions of PIL are choice of jurisdiction, choice of applicable law, and recognition of foreign judgments. It aims to avoid conflicts and inconvenience
World Legal System and their Salient FeaturesSagar Bansal
TOPICS - COMMON LAW, CIVIL LAW, RELIGION - STATE RELATION, INDIAN LEGAL SYSTEM.
Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Three major legal systems of the world consist of civil law, common law and religious law.
Conflict of laws & international contractsAkash Patel
This document discusses conflict of laws and international contracts. It begins with an introduction that defines conflict of laws as differences between the laws of two or more jurisdictions that can impact the outcome of a case. It then covers several principles of conflict of laws, including party autonomy and sovereignty. Next, it examines understanding conflict of laws in terms of jurisdiction, choice of law, and judgments. The document also discusses approaches to conflict of laws in the U.S. and how national laws can interact. It concludes by noting choices of applicable laws typically involve applying the law of the forum or location of the transaction.
International law and municipal (national) lawHumairaTariq3
International Law governs relations between states, while municipal (national) law governs individuals and entities within a state. There are various theories on the relationship between the two systems of law:
1. The dualist theory views them as separate and distinct legal systems.
2. The monist theory sees them as part of a single legal order with international law superior to national law.
3. The theory of specific adoption holds that international law only applies domestically if specifically adopted by national law.
4. Delegation theory argues states delegate authority to their constitutions through international treaties determining how treaties are implemented domestically.
Extra-Territoriality and the Conflict of Laws The Labour Act (3)Joseph Onele
This document discusses the principle of extraterritoriality and its application to Section 23(1) of Nigeria's Labour Act. It begins by establishing that generally, a state's laws only apply within its own territory. However, there are exceptions where a state seeks to enforce its laws for actions in other jurisdictions.
The document then explores the concept of "extraterritorial application" of statutes. It notes that most legal systems presume statutes do not apply extraterritorially unless expressly stated. It examines this presumption in both common law and US law, citing recent US Supreme Court cases that reaffirmed the presumption. The document aims to consider how the principle of extraterritorial jurisdiction applies to interpreting the scope
Public International Law Assignment.pptxAakchadNath1
The document discusses the relationship between international law and municipal (national) law. It defines the two types of law and presents the monist and dualist theories about their relationship. According to monism, international and municipal law are part of a single legal system. Dualism sees them as separate and autonomous. The document also compares the origins, subjects, and scope of international versus municipal law. It concludes that while the two systems operate separately, they also interact in various issues and international law now also applies to individuals, not just states.
The document discusses how treaties are ratified under US law and whether the Rome Statute is self-executing. It explains that for a treaty to have effect as domestic law, it must be self-executing or require no further legislation. While the Rome Statute does not explicitly require implementing legislation, the US would need to modify extradition laws to fully comply. However, complementarity under the Rome Statute does not require the US to adopt the same crimes into domestic law to claim jurisdiction. The US has incorporated some Rome Statute crimes already in military and domestic law.
Final Examination2BAM 317 Business LawMultiple Cho.docxmydrynan
Final Examination
2
BAM 317 Business Law
Multiple Choice Questions (Enter your answers on the enclosed answer sheet)
1) Which doctrine was overturned in the case of Brown v. Board of Education?
a. the legality of poll taxes
b. the permissibility of separate but equal facilities
c. allowing only white males to vote
d. the acceptability of paying women less than men for comparable work
e. different working hours for male and female factory workers
2) Documents such as the U.S. Constitution, the Magna Carta, and the United Nations Charter
reflect what legal theory?
a. the Natural Law school
b. the Historical school
c. the Sociological school
d. the Analytical school
3) Proponents of which school(s) of jurisprudential thought are unlikely to adhere to precedent in
making decisions?
a. the Sociological school only
b. the Critical Legal Studies school only
c. both the Sociological school and the Critical Legal Studies school
d. neither the Sociological school nor the Critical Legal Studies school
4) Which of the following is most consistent with the Natural Law School of jurisprudence?
a. Law is based on moral and ethical principles of what are right, and it is the job of men
and women, through study, to discover what these principles are.
b. The law is a reflection of society, thus the law must change naturally as society
changes over time.
c. The laws of man are secondary to the laws of nature, and thus the laws of nature take
precedence whenever the laws of man are in conflict with the laws of nature.
d. By applying the rules of logic to specific cases, the logical, or natural, result will be
obtained.
e. Laws must first and foremost respect, preserve, and promote the preservation of the
environment and life in all its forms.
5) What was the only remedy (relief) available in the law courts of England?
a. specific performance
b. fines and imprisonment
c. monetary awards for damages
d. returning the parties to their positions before the dispute arose
3
Final Examination
BAM 317 Business Law
6) Which court was eventually combined with the regular court system?
a. law courts
b. equity courts
c. criminal courts
d. merchant courts
7) What is an equity court’s function?
a. To deal with just the law of merchants.
b. To issue opinions in cases that later set the precedent for similar cases.
c. To investigate the merits of a case and base its decisions on fairness.
d. To issue executive orders.
e. To set state or federal laws between two or more nations.
8) The ability of Native American Indians to conduct gambling operations on Indian reservations:
a. is determined solely by the respective Indian tribe
b. is determined through negotiation by the state and Native Americans
c.is within the control of the federal government because of provisions in the U.S. Consti-
tution
d. has been found by the courts, in many ins ...
Commercial law, also known as business law or corporate law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.[1] It is often considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange, negotiable instruments, contracts and partnership.[2] It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law.In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories.
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This Dissertation explores the particular circumstances of Mirzapur, a region located in the
core of India. Mirzapur, with its varied terrains and abundant biodiversity, offers an optimal
environment for investigating the changes in vegetation cover dynamics. Our study utilizes
advanced technologies such as GIS (Geographic Information Systems) and Remote sensing to
analyze the transformations that have taken place over the course of a decade.
The complex relationship between human activities and the environment has been the focus
of extensive research and worry. As the global community grapples with swift urbanization,
population expansion, and economic progress, the effects on natural ecosystems are becoming
more evident. A crucial element of this impact is the alteration of vegetation cover, which plays a
significant role in maintaining the ecological equilibrium of our planet.Land serves as the foundation for all human activities and provides the necessary materials for
these activities. As the most crucial natural resource, its utilization by humans results in different
'Land uses,' which are determined by both human activities and the physical characteristics of the
land.
The utilization of land is impacted by human needs and environmental factors. In countries
like India, rapid population growth and the emphasis on extensive resource exploitation can lead
to significant land degradation, adversely affecting the region's land cover.
Therefore, human intervention has significantly influenced land use patterns over many
centuries, evolving its structure over time and space. In the present era, these changes have
accelerated due to factors such as agriculture and urbanization. Information regarding land use and
cover is essential for various planning and management tasks related to the Earth's surface,
providing crucial environmental data for scientific, resource management, policy purposes, and
diverse human activities.
Accurate understanding of land use and cover is imperative for the development planning
of any area. Consequently, a wide range of professionals, including earth system scientists, land
and water managers, and urban planners, are interested in obtaining data on land use and cover
changes, conversion trends, and other related patterns. The spatial dimensions of land use and
cover support policymakers and scientists in making well-informed decisions, as alterations in
these patterns indicate shifts in economic and social conditions. Monitoring such changes with the
help of Advanced technologies like Remote Sensing and Geographic Information Systems is
crucial for coordinated efforts across different administrative levels. Advanced technologies like
Remote Sensing and Geographic Information Systems
9
Changes in vegetation cover refer to variations in the distribution, composition, and overall
structure of plant communities across different temporal and spatial scales. These changes can
occur natural.
2. Towards a solution to the anarchy problem:
How to solve the sovereignty problem?
1. This is the key puzzle: Rights vs Obligations
A. Sovereignty and the need for enforcement go in opposite directions:
B. Need a social contract for nation-states,
C. e.g. Hobbes and Locke in the domestic sphere, how to get there in the intl
setting?
2. A possible solution lies in self-executing treaties
1. The enforcement mechanism devolves from the intl system level to the
domestic sphere;
2. The way it would work leads to a focus on the question of standing.
3. Towards a solution to the anarchy problem:
Key Puzzles
I. Standing: who gets to sue whom (e.g., claim damages) in what legal
settings?
A.What’s the history of the evolution of legal theory on standing?
B.In US, for ex, rules regarding standing do not appear in the Constitution.
C. The Supreme Court based them on the authority granted by Article III of the
Constitution and federal statutes.
4. Towards a solution to the anarchy problem:
Key Puzzles
II. Enforcement: which courts, and hence which/whose police powers
get invoked to enforce agreements,
A.Standard view in US setting: there’s a triad: exec, leg, judicial, all
co-equals,
A.The intl law solution analogy would be to use states courts to enforce
federal laws
5. Towards a solution to the anarchy problem: Key Puzzles
A.What is existing legal theory on relationship between state and
federal courts in US?
A. State and local courts must honor both federal law and the laws of the other states.
B. State courts must honor federal law where state laws are in conflict with federal laws
C. Claims arising under federal statutes can often be tried in the state courts, unless
Constitution or Congress explicitly required that only federal courts can hear claim.
D. Third, under the full faith and credit clause, each state court is obligated to respect the
final judgments of courts in other states. Thus a contract dispute resolved by an
Arkansas court cannot be relitigated in North Dakota when the plaintiff wants to collect
on the Arkansas judgment in North Dakota. First court that takes case has final say
E. Fourth, state courts often must consider the laws of other states in deciding cases
involving issues where two states have an interest, such as when drivers from two
different states collide in a third state.
6. Towards a solution to the anarchy problem: Key Puzzles
1. In EU/ECJ setting, relationship between EU/Members states/ECJ?
2. The CJEU does not itself apply EU law to a dispute brought by a referring court,
A. Proceedings against a Member State for failure to fulfill an obligation
B. Proceedings against the EU institutions for annulment and for failure to act
C. Actions of the Treaty on the Functioning of the European Union when they are brought by a
Member State against an act of or failure to act by the European Parliament or the Council
3. ECJ statement of the principle that the Treaties must not be interpreted rigidly but
must be viewed in the light of the state of integration and of the objectives of the
Treaties themselves.
A. This principle has allowed legislation to be adopted in areas where there are no specific Treaty
provisions, such as the fight against pollution
4. Preliminary rulings are binding both on the referring court and on all courts in
Member States.
7. Two types of treaties:
1. self-executing, 2. non-self-executing
1. Treaties designed to deal with rights and duties of private individuals are
generally considered to be self-executing.
• "Self-executing treaty" do not require specific implementing legislation by Congress,
creates rights flowing directly to litigants without implementing legislation.
2. Political issues about states and firms usually/commonly require enabling
legislation
• No consensus, normative or legal about what’s what
• Varies a lot by domestic institutional rules
• More on US treaties later.
9. Incorporation (monism)
1. Treaties
(a)equivalent of new law, treaties are applicable immediately after signing
(b)In UK case, some are incorporated, some must be transformed.
(c)The migratory waterfowl example would not have worked in UK.
(d)No constitution, so differences worked out by rule and precedent.
10. Incorporation (monism)
1. Executive negotiates, sign, and ratify treaties.
(a)British case: Parliamentary action required for treaty to become part of
English law.
(b)BUT! English PM, the executive, is also head of majority party in parliament
(Duverger law – first past the post system leads to two parties).
• A result is that executive has great power in England to make law via
treaty.
• If PR system, would be weaker.
(c)In PR systems, can be harder as PM’s party alone not majority.
11. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
1. Dualism
• The two law systems are separate, both with respect to
procedure and to subject matter.
(a)Procedural matters: municipal courts resolve problems by
reference to municipal law, while international courts
resolve problems by reference to international law.
(b)Substantive matters: only problems affecting the
international relations of nations are within the purview of
international law.
12. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
2. Monism
•Municipal law is a subset of laws within the
field of international law.
13. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
3. Monism-Naturalism
•Natural law is a third and superior form of law,
which determines the respective spheres of both
international and municipal law.
14. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
4. Coordinationism
•International and municipal law operate
independently in separate but coordinated
spheres.
•Corollary: municipal law is generally supposed to
conform with the norms of international law.
15. SCOPE OF INTL LAW IN PRACTICE
1)The Practice in International Courts
i)Municipal law is regarded as being subservient to
international law.
ii)States have a general obligation to bring their
municipal law into compliance with international
norms.
iii)Procedurally municipal law is treated as "mere fact."
16. SCOPE OF INTL LAW IN PRACTICE
2) The Practice in Municipal Courts
i)International law is generally treated as being
correlative.
(a)Meaning: Once a municipal court determines that
a particular rule of international law is applicable in
a particular case, that law will be treated as law.
(b)This view drives American conservatives crazy.
17. SCOPE OF INTL LAW IN PRACTICE
i) To determine if an international law has been received into the local jurisprudence.
i) Customary law:
i) Doctrine of incorporation:
(a)Customary international law is adopted locally to the extent it is consistent with prior municipal legislation or
judicial decisions of final authority.
(b) Followed in most countries with usual caveat about how important is rule of law in particular country.
ii) Doctrine of transformation:
(a)Customary international law only applies once clearly adopted by legislative action, judicial decision, or
established local usage.
ii)For treaties:
i) Self-executing treaty contains a provision making it apply domestically without a party having to adopt
enabling legislation.
ii) Non-self-executing treaty has no such provision.
(a)Then subject to local rules
18. Intl and municipal law
1. Intl law can only be implemented by state bodies.
a)Majority of intl rules are directed at states: their behaviors, not individuals, although there
are important exceptions, ICC
b)Can only be put into operation by domestic legal systems if states are willing/able to
implement them
i) Extradition treaties
ii) Customary rules on treatment of foreigners
iii)Expropriation of national assets
19. Theories of the relationship
1. Positivism: dualism or pluralism
i) Importance of states
ii)Intl law founded on consent of states
iii)Actual practice: custom and treaty formulates role of intl law
iv)Rules of system and states are separate and cannot effect or overrule one another
20. Monists: one law (two groups)
2. Moral foundation (naturalists)
(1)deep concern for human rights
(2)law is concerned with the well being of individuals
(3)deeply suspicious of an intl system based on sovereignty and independence
(4)faith in capacity of system to build intl order with sense of moral purpose and justice
21. Formal logical grounds for Monists:
(a)law has to start somewhere
(a)Builds on Kant
(b)patterns of behavior that ought to be followed (nice, reciprocity, community)
(c)sanctions to be employed to deter/punish illegal acts
(b)same mechanism internal and external
(a)states owe their legal existence and relationship to one another to intl law,
(b)equality (sovereignty) of states before the law flows form intl law,
(c)IL therefore supersedes domestic law as domestic law is only an issue if sovereign states
exist.
(c)build on logic of predecession, which factor comes first
22. Pragmatic pluralism
1)Two (domestic and IL) are just different in sense that Fr/Br/US law are different.
No Hierarchy.
2)What occurs are conflicts of obligations
(1)remedies lie in sphere in which violation occurs
3) Role of dom/municipal rules in IL
a) General rule: states that breaks IL cannot justify it on basis on domestic law
i) States could evade IL w/ domestic legislation
ii)This is laid out in Vienna convention on the law of treaties, 1969,
reaffirmed 1980.
23. Alabama claims case:
(a)The Confederate warship Alabama, along with other Southern cruisers, was built and armed in Britain
during the Civil War.
(b)Before the Union sank it in 1864, it inflicted great losses on Northern shipping. The Americans claimed
compensation from Britain, whose neutrality in the war they suspected and resented.
(c)Britain claimed in its defense they had passed no legislation authorizing the attacks or sailing of the
ship, even though equipping and allowing the ship to sail violated British claim of neutrality.
(d)Britain as a supposed neutral, received favorable treatment by US during the war (reciprocity) which
US claimed Britain reneged on.
(e)The Americans suggested that cession of some Canadian territory would be acceptable recompense.
This heightened the fear of annexation in Canada. The issue was submitted to arbitration in 1871, and
a Geneva tribunal awarded the United States $15.5 million in gold in 1872.
24. More recently in Lockerbie case
(a)On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103,
killing all 259 passengers and crew, as well as eleven residents of the town of
Lockerbie where the wreckage of the Boeing 747 crashed 31,000 feet below.
(b)Dispute over extradition, Libya did not have extradition treaty w/ US/UK/Fr, but
had signed Montreal protocol on civil aviation.
(c)Libya initially claimed domestic law and treaty as member of Arab league
prohibited them from turning over individuals.
(d)US goes to Security Council, get sanctions.
(e)In April 1999, Libya surrendered the two Libyan officials accused of the bombing
(Abdelbasset Ali Ahmed Al-Megrahi and Ali Amin Khalifa Fhimah) for trial in the
Netherlands, before a panel of Scottish judges
25. Intl law before municipal courts: US
i) Similar to UK, but constitution affects some factors.
ii)Rules subject to constitution
i) Customary intl law is equivalent to federal law and fed court determinations of such are
binding on state courts.
i) American courts bound by precedent
ii) Must apply statute over customary law
(1)Citizens living in Nicaragua v. Reagan: ‘no enactment of congress can be challenged on the grounds that it
violates customary international law’
(2)US judiciary has the power to ignore intl law pursuant to an existing statute (federal law only however)
(3)Statute also takes precedence over preexisting treaty or customary rule of intl law.
(4)Subsequent treaty would overrule existing statue, however.
iii)Mixed successes on incorporation of intl human rights law
26. UK
i) Public policy courts should give “effect” to establish rules of IL
ii)Various theories of how this should happen
i) Transformation
i) Two systems, operating separately
ii) For intl law to come into effect, it must be transformed via legislation, act of parliament
iii)Came into being with notion that intl law would be agreed to by sovereign, or specifically adopted
to be valid
27. Customary law
(a)main way of incorporation in Britain
(b)tempered by role of precedent in Britain: common law country
1. Anything not specifically legislated, judges make rule, which becomes law.
2. Different than customary law which makes customs law as interpreted by judge. See NOTES
(c)Trendtex trading corporation case
1. The Bank was sued in England on certain commercial letters of credit it had issued in favor of Trendtex, which would effect
payment to Trendtex for cement it had sold to the Nigerian government.
2. The government had instructed the bank not to pay against the letters of credit. When it was sued, the bank claimed to be
representing the Nigerian government and so to be able to claim immunity.
3. The Court of Appeal held that the bank was not an organ of the Nigerian State and so did not share the Nigerian
Governments sovereign immunity.
4. Incorporation v transformation very much in play.
(a)Presumption is that congress will not pass laws to deliberately evade intl law.
(b)US vs. PLO: anti terror act provided for closure of all PLO offices. Attorney general close UN mission, violating UN treaty.
28. Review: The Practice in International Courts
a) Municipal law is typically regarded as being subservient to international law.
b) States have a general obligation to bring their municipal law into compliance with international
norms.
c) Procedurally municipal law is treated as "mere fact" rather than “law.”
29. The Practice in Municipal Courts
a) International law is generally treated as being correlative.
a)Meaning: Once a court determines that a particular rule of international law
is applicable in a particular case, that law will be treated as law and not as a
fact.
b)To determine if an international law has been received into the local
jurisprudence.
a)For customary law:
i) The doctrine of incorporation: customary international laws are adopted locally to the
extent it is not inconsistent with prior municipal legislation or judicial decisions of final
authority.
30. Followed in most countries.
i) The doctrine of transformation: customary international law does not apply until
clearly adopted by legislative action, judicial decision, or established local usage.
ii)For treaties:
i) Self-executing treaty contains a provision making it apply domestically
without a party having to adopt enabling legislation.
ii)Non-self-executing treaty has no such provision.
31. Source and Scope in the ICJ
1)International Court of Justice (ICJ) lists the sources which that court is
permitted to use.
2)Followed by most other courts.
3)The International Court of Justice is the principal judicial organ of the United
Nations in The Hague (Netherlands). It began work in 1946, operating under
a Statute which is an integral part of the Charter of the United Nations.
4)Functions of the Court
i) To settle legal disputes submitted to it by States
ii)To give advisory opinions on legal questions referred to it by duly
authorized international organs and agencies.
32. Source and Scope in the ICJ
1)Composition
i) The Court is composed of 15 judges elected to nine-year terms of
office by the United Nations General Assembly and Security Council
sitting independently of each other. The Members of the Court do
not represent their governments but are independent magistrates.
ii)The composition of the Court has also to reflect the main forms of
civilization and the principal legal systems of the world.
iii)When the Court does not include a judge possessing the nationality
of a State party to a case, that State may appoint a person to sit as a
judge ad hoc for the purpose of the case.
33. Source and Scope in the ICJ
1)The Parties
i)Only States may apply to and appear before the Court.
34. Source and Scope in the ICJ
2) Jurisdiction
i) The Court is competent to entertain a dispute only if the States concerned have accepted its
jurisdiction in one or more of the following ways:
(a)by the conclusion between them of a special agreement to submit the dispute to the
Court;
(b)by virtue of a jurisdictional clause,
(1)typically, when they are parties to a treaty containing a provision whereby, in the
event of a disagreement over its interpretation or application, one of them may
refer the dispute to the Court. Several hundred treaties or conventions contain a
clause to such effect;
ii) through the reciprocal effect whereby each has accepted the jurisdiction of the Court as
compulsory in the event of a dispute with another State having made a similar declaration.
(a)The declarations of 65 States are at present in force, a number of them having been
made subject to the exclusion of certain categories of dispute.
iii)In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which decides.
35. Source and Scope in the ICJ
3) ICJ looks to:
i) International treaties and conventions.
ii)International custom.
iii)General principles of law.
4) In interpreting these, the ICJ may also look to:
i) Judicial decisions.
ii)Teachings of publicists.
5) Guidelines establish an implied hierarchy.
i) In practice, ICJ turns first to conventions, then to custom, then to general
principles.
6) Not all of the sources listed have to be used.
i) Parties by mutual agreement may instruct a court to use only certain sources.
Editor's Notes
Missouri v. Holland, 252 U.S. 416 (1920) is a United States Supreme Court case concerning the extent to which international legal obligations are incorporated into federal law under the U.S. Constitution.[1]
The case centered on the constitutionality of the Migratory Bird Treaty Act of 1918, which prohibited the killing, capturing, and selling of certain migratory birds pursuant to a treaty between the U.S. and the United Kingdom. The state of Missouri challenged the enforcement of the Act within its jurisdiction, arguing that the regulation of game was not expressly delegated to the federal government by the U.S. Constitution and therefore was reserved for the states under the Tenth Amendment; accordingly, the U.S. government had no constitutional right to enter into a treaty concerning game regulation.[2]
In a 7–2 decision, the Court upheld the Act as constitutional, since it was enacted pursuant to the federal government's express power to make treaties and to enact laws pursuant to treaties, which the Supremacy Clause of the Constitution elevates above state law. The Court also reasoned that protecting wildlife was in the national interest and could only be accomplished through federal action.[1]
Missouri is also notable for Justice Oliver Wendell Holmes's articulation of the legal theory of a "living constitution", which purports that the Constitution changes over time and adapts to new circumstances without formal amendments.[3]
With regard to that we may add, that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.[7]
Congress had previously passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory, and twice successfully sued to have such laws declared unconstitutional, on the premise that the U.S. Constitution gave Congress no enumerated power to regulate migratory bird hunting, thereby leaving the matter to states pursuant to the Tenth Amendment.[4]
Disgruntled with these rulings, Congress then empowered the State Department to negotiate with the United Kingdom—which at the time still largely handled the foreign relations of Canada—a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, requiring the federal government to enact laws regulating the capturing, killing, or selling of protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.[5]
The state of Missouri requested that U.S. Game Warden Ray Holland be enjoined from implementing the Act, arguing that it was "an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and [...] the acts of the defendant [...] invade the sovereign right of the State and contravene its will manifested in statutes."[2] Additionally, Missouri claimed that states had an "absolute" right to regulate game within their borders as recognized by "ancient law, feudal law, and the common law in England" as an "attribute of government and a necessary incident of sovereignty."[6] The state also warned that permitting the federal government to regulate birds could set a dangerous precedent for government to broaden its power over other domains for which it had no enumerated constitutional power.
Missouri v. Holland, 252 U.S. 416 (1920) is a United States Supreme Court case concerning the extent to which international legal obligations are incorporated into federal law under the U.S. Constitution.[1]
The case centered on the constitutionality of the Migratory Bird Treaty Act of 1918, which prohibited the killing, capturing, and selling of certain migratory birds pursuant to a treaty between the U.S. and the United Kingdom. The state of Missouri challenged the enforcement of the Act within its jurisdiction, arguing that the regulation of game was not expressly delegated to the federal government by the U.S. Constitution and therefore was reserved for the states under the Tenth Amendment; accordingly, the U.S. government had no constitutional right to enter into a treaty concerning game regulation.[2]
In a 7–2 decision, the Court upheld the Act as constitutional, since it was enacted pursuant to the federal government's express power to make treaties and to enact laws pursuant to treaties, which the Supremacy Clause of the Constitution elevates above state law. The Court also reasoned that protecting wildlife was in the national interest and could only be accomplished through federal action.[1]
Missouri is also notable for Justice Oliver Wendell Holmes's articulation of the legal theory of a "living constitution", which purports that the Constitution changes over time and adapts to new circumstances without formal amendments.[3]
With regard to that we may add, that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.[7]
Congress had previously passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory, and twice successfully sued to have such laws declared unconstitutional, on the premise that the U.S. Constitution gave Congress no enumerated power to regulate migratory bird hunting, thereby leaving the matter to states pursuant to the Tenth Amendment.[4]
Disgruntled with these rulings, Congress then empowered the State Department to negotiate with the United Kingdom—which at the time still largely handled the foreign relations of Canada—a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, requiring the federal government to enact laws regulating the capturing, killing, or selling of protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.[5]
The state of Missouri requested that U.S. Game Warden Ray Holland be enjoined from implementing the Act, arguing that it was "an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and [...] the acts of the defendant [...] invade the sovereign right of the State and contravene its will manifested in statutes."[2] Additionally, Missouri claimed that states had an "absolute" right to regulate game within their borders as recognized by "ancient law, feudal law, and the common law in England" as an "attribute of government and a necessary incident of sovereignty."[6] The state also warned that permitting the federal government to regulate birds could set a dangerous precedent for government to broaden its power over other domains for which it had no enumerated constitutional power.
Denning had to avoid cases of precedent and did so by claiming that
“Seeing that the rules of international law have changed …and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law as existing from time to time, do form part of our English law. It follows to that a decision of this court as to what was the ruling of international law 50 or 60 years ago, is not binding on this court today. International law knows no stare decisis (binding by precedent). If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change, and apply the change in our English law, without waiting for the House of Lords to do it.”