International law and national law(s)

LEAD-IN

I. Answer the questions

1. Is international law a true law?

2. What law at the national level is defined in opposition to international law?

3. How does international law differ from domestic law?

4. What are the two main theories that explain the relationship between international law and domestic law?

5. How international law is incorporated into domestic and why is it important?

6. Do different countries incorporate and interpret international law in different ways?

7. What do you know about the implementation of international law in Ukraine/other countries of the world?

II. Comment on the following

1. International law is part of the common law. (B. Pigott).

2. Who saves his country violates no law. (Napoleon Bonaparte).

3. International law, like the moral law, is part of the law of England, but only to the extent that the Courts will not help those that break it. (C.B.Pollock).

4. A great part of the law of nations stands upon the usage and practice of nations. It is introduced, indeed, by general principles: but it travels with those general principles only to a certain extent: and, if it stops there, you are not at liberty to go further, and to say, that mere general speculations would bear you out in a further progress— thus, for instance, on mere general principles it is lawful to destroy your enemy; and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other, modes of destruction. (Sir W. Scott, "The Flad Oyen").

5. The voluntary law of nations derives its force from the presumed consent of nations, the conventional from their express consent; the consuetudinary from their tacit consent. (Wolfus, "Jus Gentium").

READING

I. Read the text.

INTERNATIONAL LAW AND NATIONAL LAW [16]

One of the most important areas of international law for the practicing lawyer is the question of its relationship with national law, such as the domestic law of the UK. While it is generally true that international law is concerned with the legal relations between sovereign states and national law is concerned with the legal relations of individuals within a state, there is considerable overlap between the two legal systems. […] Indeed, now that international law confers rights and obligations directly on individuals - as with human rights and war crimes - it is becoming even more important to know precisely how the rules of one system will affect the decision-making process in the courts of another. […]

Theories

Monism

The monist theory supposes that international law and national law are simply two components of a single body of knowledge called 'law'. 'Law' is seen as a single entity of which the 'national' and 'international' versions are merely particular manifestations. Thus, both sets of rules operate in the same sphere of influence and are concerned with the same subject matter. Moreover, because they operate concurrently over the same subject matter, there may be a conflict between the two systems: international law may require one result and the provisions of national law another. If this happens in a concrete case, international law is said to prevail. For example, if the international law of human rights stipulates that no person may be imprisoned without trial, under the monist theory a national court would have to give effect to this even though a clear rule of national law said otherwise.

Although all monists suppose the superiority of international law in cases of conflict, there are several different explanations as to why this should be so. Hans Kelsen, a noted legal theorist, sees the superiority of international law as a direct consequence of his 'basic norm' of all law. This basic norm - or fundamental principle from which all law gains its validity - is that 'states should behave as they customarily have behaved'. Kelsen is 'monist-positivist' in that international law derives from the practice of states and national law derives from the state as established in international law. International law is, therefore, a 'higher' legal order. In contrast, Hersch Lauterpacht, once a judge of the ICJ, sees international law as superior because it offers the best guarantee for the human rights of individuals. Indeed, the 'state' itself is seen as a collection of individuals, rather than a legal entity in its own right. International law is said to control or override national law because the latter cannot be trusted to protect individuals and, more often than not, because it is used to persecute them. International law prevails because it is the guarantor of individual liberty, and clearly this echoes the current thinking of many international human rights lawyers. A similar view sees the relationship between international law and national law as monist, with international law being relatively superior, but with both systems subject to a higher legal order - the law of nature. This is the 'monist-naturalist' theory and it roots the validity of all law in natural law […]. According to this view there is a hierarchy of legal orders, with natural law at the summit, followed by international law, followed by national law.

Obviously, these diverse opinions about why international law should take priority over national law cannot all be correct. They are part of the wider debate about the validity of international law as a 'legal' system […]. However, what they have in common is the basic monist tenet that international law and national law are part of the same hierarchical legal order. Consequently, norms of international and national law must be ranked in order of priority should a conflict occur in a concrete case. In this sense, international law is superior. In practice, this means that the legal institutions of a state, such as its courts and legislature, should ensure that national rights and obligations conform to international law. More importantly, if they do not, the national court should give effect to international law and not its own domestic law.

Dualism

Dualism denies that international law and national law operate in the same sphere, although it does accept that they deal with the same subject matter. For dualists, such as Triepel, international law regulates the relations between states whereas national law regulates the rights and obligations of individuals within states. International law deals with that subject matter on the international plane whereas national law deals with the subject matter internally. Consequently, if an individual is denied a right in a national court which is guaranteed under international law, the national court will apply the national law. Likewise, action by a state that might be unlawful under international law may nevertheless attract validity and protection in national law if there is a clear rule of national law to that effect […]. The state itself may be in breach of its obligations on the international plane, but that is a matter for an international court. There are, in other words, dual legal systems operating simultaneously in respect of the same rights and obligations and the national court should not concern itself 'with the meaning of an international instrument operating purely on the plane of international law' - per Simon Brown LJ in Campaign for Nuclear Disarmament v Prime Minister of the United Kingdom [2002] EWHC 2777 (QB). The effect of such a doctrine is that a government may be behaving perfectly lawfully within its own territory, even though its conduct may entail international responsibility. […] For the present, however, the impact of the dualist theory is that international law cannot invalidate domestic law, or vice versa, and rights and obligations arising under one system cannot automatically be transferred to the other. This theory does accept that the systems can come into conflict - because they deal with the same subject matter - but recognises that each system applies its own law unless the rules of that system say otherwise. International courts apply international law and national courts apply national law.

Different subject matter

Both monism and dualism accept that international law and national law deal with the same subject matter; that they are in fact concerned with the same substantive matters. Monism simply accepts that the international rule takes priority, whereas dualism insists that each system deals with the matter in its own way. A third view, promoted by Fitzmaurice and Anzilotti, denies that international law and national law ever operate in the same sphere or that they are concerned with the same subject matter. According to this view, the relationship between international law and national law is like the relationship between English law and French law, they never contradict each other as systems of law. It may be that the 'obligations' of each system come into conflict - as where national law allows imprisonment without trial and international law does not - but then which obligation is to prevail is to be settled by the 'conflict of laws' rules of the particular court. So, rules of national law may or may not say that international law is to prevail, but the solution is still dictated by national law.

Essentially, this is a less theoretical approach to the problem of the relationship of international and national law. Each system of law is seen as completely independent of the other because it is argued that this is how the systems relate in practice. If obligations do conflict, national courts give effect to national law obligations, unless a national rule says otherwise, and international law gives effect to international obligations, unless an international rule says otherwise. It will be appreciated that in this regard the third approach is similar to the dualist theory, and in terms of practical consequences there is little difference between the two. The distinction lies primarily in the theoretical point that this is a theory of 'coordination' (the two systems do not conflict as systems), whereas both monism and dualism are theories of 'confrontation'.

These theories have occupied the minds of legal philosophers ever since international law emerged as a coherent body of rules that could affect national legal systems. […]

 

II. Answer the questions.

1. What are the theories of relation between national and international law?

2. What is the concept of the monist theory?

3. What is the concept of the dualism theory?

4. How can the approach of Hans Kelsen be defined?

5. How did Hersch Lauterpacht see international law?