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International treaties under the British constitution

2019-01-10 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- International treaties under the British constitution,供大家参考学习,这篇论文讨论了英国宪法下的国际条约。英国作为英美法系的起源国,在国内法与国际法的关系上一致秉承典型的二元论,但近年来的实践中也有弱化的趋势。在条约上,英国国家宪法并不授予条约以任何特别地位。一般而言,英国通过制定专门的立法,将有关条约的权利与义务并入到国内法。而英国法院承认国际习惯在国内的法律约束力,并且可以在国内直接适用。

International treaties,英国宪法下的国际条约,essay代写,作业代写,代写

As the origin country of Anglo-American law system, Britain always adheres to the typical dualism in the relationship between domestic law and international law. Therefore, on the basis of introducing the status of international treaties in the UK, this paper discusses the different legal forms of eu law and its relationship with member states, and discusses the status and application of eu law under the framework of the UK constitution.

The British national constitution does not confer any special status on treaties. In general, the UK "incorporates" treaty rights and obligations into domestic law by enacting specific legislation. English courts recognize that international customs are legally binding in the country and can be applied directly in the country, unless an international custom is related to existing or future domestic statutes in the UK. One of the two important changes in the 2010 constitutional reform and governance act was the explicit requirement that treaties be ratified by parliament. Thus, the legal status of the treaty that must be approved by the parliament was established, thus replacing the Ponsonby Rule. But this is not without controversy. The development of eu law has posed new challenges to parliamentary sovereignty.

According to the current common saying, there are two independent legal systems in the eu, one is the legal system of the member states themselves, and the other is the legal system composed of various treaties, agreements and directives of the eu. As a result, the relationship between the eu and its member states is complicated and difficult in practice. In general, the relationship between the eu and its member states must be properly managed on the basis of adherence to the underlying treaties. To be specific, the complexity of the relationship between eu law and domestic laws of each member state is mainly reflected in two aspects. Second, when there is a conflict between the eu law and the domestic law of the member states, the eu law or the domestic law should be applied first. In judicial practice, the ecj has established some precedents and clarified three basic principles of eu law, namely, the principle of direct effect, the principle of priority and the principle of subordination. These three principles are of great significance to the relationship between the eu and its member states in practice.

However, the status of different forms of eu law is not exactly the same.

The most basic legal form of eu law is international treaty. In some typical cases, the European court of justice has clearly pointed out that member states should interpret the substantive provisions of the treaty according to the preamble or its guiding provisions, and affirmed the legal effect of the preamble and guiding provisions of the treaty. Binding international treaties of the eu also fall within the scope of eu law and are also binding on member states.

In addition, eu law also includes regulations, directives and decisions made by the council of Europe or the European commission.

Of course, in the process of European integration, the European court of justice has formed many precedents. One of the precedents of the ecj confirms the principle that eu law has the same legal effect in the eu field, which makes the preliminary judgment of ecj directly affect the rights and obligations defined in the relevant domestic laws. This, to a certain extent, ensures the unity of eu law in the eu field, which can be interpreted and applied uniformly.

In the legal form of eu law, in addition to international treaties, general legal principles are also very important legal forms, which are generally recognized. In addition to the statute of the international court of justice, the treaty of the European Community also explicitly stipulates that the laws of member states recognize the general principles of law, and the court of justice in Europe also adopts the general principles of law in judicial practice. In the practice of the European court of justice, it with the general principles of law to examine whether a certain eu legislation involved legal and administrative measures for the European commission also need to demonstrate whether a violation of the general principles of law, if the commission administrative measures do not in violation of the other treaty, but a violation of the general principles of law, will also be questioned. In addition, general legal principles also constrain member states to interpret or apply eu laws and implement eu policies.

Soft law is a special legal form existing in the eu, but it only provides some guidance for the interpretation and application of eu law, but it is not legally binding. Therefore, in this sense, soft law is not the legal source of eu law. But soft law has certain significance in practice. Soft law takes different forms, such as Suggestions and opinions, declarations, programmes of action and resolutions of eu institutions, as well as some official documents.

When there are differences and conflicts between eu law and domestic law of member states, the European court of justice insists that eu law is superior to British law and makes it clear in case law. British courts also accept this view, in domestic court decisions, when parliamentary legislation is incompatible with eu law, eu law is applied above parliamentary legislation. British judges also agree that some laws made by eu institutions have a higher status than ordinary laws passed by parliament.

Moreover, the precedents made by the European court of justice also show that the law of the European Union is not only more effective than the domestic law of the member states, but even higher than the constitution of the member states, thus having the highest effect.

Eu law is an external legal system relative to UK domestic law. The UK generally translates eu law into domestic legislation, which is enacted and applied domestically. In the case of Pickstone v Freemans PLC, the house of lords confirmed the principle of how to conduct "purposeful interpretation".

Through domestic legislation, Britain transforms the laws of the European Community into domestic laws for application, endows the law of the European Community with a superior status over its own laws, strictly abides by it in judicial practice and interprets it with purpose, so that the laws of the European Community can be effectively applied in the country.

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