The legal context for implementation of international law
Contents- The CRC Framework
- Wider Framework for Children’s Rights
- Key elements of a Children's Rights Based Approach to legislative reform
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The legal context for implementation of international law
- Dualism Vs Monism
- Common law tradition
- Civil law tradition
- Islamic law and legal systems
- Mixed or Pluralist Legal Systems
- Legislative Reform in Unitary States Vs Federal States
- Legislative Reform in Devolved States
- General reflection on local and regional governments in the context of children’s right legislative reform
- Guidance of the CRC Committee on decentralisation, federalisation and delegation
Civil law tradition
Background
The civil law tradition is derived mainly from Roman law, with its emphasis on writing laws into comprehensive national codes.
In countries with a civil law tradition, written or codified law is the primary source of law. It is organised into comprehensive codes, which lay out basic legal principles.
However, some civil law systems remain un‐codified, while at the same time some common law jurisdictions may codify parts of their law (such as a criminal code).
- Thus, evidence of the systematic arrangement of related laws into a single written document does not automatically identify a civil law system.
Implications
Judges apply and interpret the law by looking at the legislative history, doctrine, and law’s purpose.
Judges have no legal obligation to follow the interpretations and decisions of other judges in previous cases (except those of the higher courts), although they may do so in practice.
The judicial decision-making process begins with identifying the applicable law and then applying it to the case.
Once ratified, international treaties become part of the domestic law when they are published in the Official Gazette.
Key considerations to take into account when engaging in legislative reform within civil law countries
International instruments become part of domestic law upon ratification, avoiding the need for the national parliament to incorporate the international instrument. However, at the implementation stage, further legislation may be needed.
- This avoids the risks associated with political and public debate, which may result in non-incorporation of the instrument, such as the CRC, or part-incorporation, which can result in a State Party disregarding or violating its international obligations.
In Belgium, where the CRC acquired binding legal status on ratification, research has found that the CRC is frequently invoked in litigation and the legal framework is accepted to be largely compliant with the Convention. Although this may be a result of the incorporation of the Convention itself into the Belgian legal system, some argue that the Belgian system of automatically incorporating international treaties reflects a political attitude that accepts the influence of international human rights law on the domestic legal system (Kilkelly 2019).
- As it is an automatic process, there can sometimes be a lack of public knowledge about the international instruments.