RELATIONSHIP OF

NATIONAL &
INTERNATIONAL
LAW
◦ By principles that govern International Law, States are committed towards respecting the treaties that
they establish and also to determine their application by their own legal, executive and judicial
institutions. Yet International Law doesn’t rule on how the conditions in which legal provisions included
in treaties are to be integrated in the states’ internal legal system, so as they might be applied by the
competent authorities.
◦ This matter of concern is left for the states to decide upon, ruling over it as sovereignties, and concordant
with their views on the relation b/w International law & national law.
Theories
◦ Monism
◦ Dualism
◦ Main difference is on the point of incorporation. Monism says that International law needs no
incorporation in national law, just ratification is required. But Dualism is of the view that until
and unless an international law is incorporated into the national law, it cant have effect.
The Monist concept
◦ Is represented by the state sovereignty, as an absolute dogma. In fact it is the state’s will that supremely
establishes the relations with other states. If the international law coerces/ pressurizes the state, it
happens bcz the state has agreed to limit its sovereignty: the state’s self imposed limitation by its freely
complied will to take part in treaties & by the freely acceptance of the customary international law.
◦ Priority for International law
◦ In its most straightforward form, monism holds that international law and domestic law form part of a
single universal legal system.
◦ Monism’s most famous proponent, Hans Kelsen, considered that there was a hierarchical relationship
within the monist legal system, under which international law was superior to domestic law and thus
prevailed in any conflict between the two laws.
◦ In a pure monist state, international law does not need to be translated into national law. It is just
incorporated and has effect automatically in national or domestic laws. The act of ratifying an
international treaty immediately incorporates the law into national law; and customary international law
is treated as part of national law as well.
◦ International law can be directly applied by a national judge, and can be directly invoked by citizens, just
as if it were national law. A judge can declare a national rule invalid if it contradicts international rules
because, in some states, the latter have priority.
◦ In other states, like in Germany, treaties have the same effect as legislation, and by the principle of Lex
posterior derogat priori ("Later law removes the earlier"), only take precedence over national legislation
enacted prior to their ratification. In its most pure form, monism dictates that national law that
contradicts international law is null and void, even if it post-dates international law, and even if it is
constitutional in nature.
◦ Austria, Chile, China, Columbia, Egypt, France, Germany, Japan, Mexico, Netherlands, Poland, Russia,
South Africa, Switzerland, Thailand,
The dualist concept
◦ H. Triepel in “Volkerrecht und landrecht”
◦ Proponents of dualism consider that b/w internal & international provisions there cannot exist any kind
of conflicts since these provisions don’t have the same object- internal provisions are applied exclusively
b/w the state’s borders, & cannot intervene in the international legal system.
◦ For to apply an International treaty in a contracting state, it is necessary for that state to adopt the legal
measures from the treaty into a national provisions or to introduce it through e legal plan that facilitates
admission. In both ways we are confronted with a nationalization of the treaty, the international provision
passing through a transformation, which allows it to be applied as an internal regulation, part of internal
and not international law.
◦ A dualist system treats the international and domestic systems of law as separate and independent.
◦ The validity of international law in a dualist domestic system is determined by a rule of domestic law
authorizing the application of that international norm.
◦ Dualists emphasize the difference between national and international law, and require the translation of
the latter into the former. Without this translation, international law does not exist as law. International
law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its
national law in order to conform to the treaty or does not create a national law explicitly incorporating
the treaty, then it violates international law. But one cannot claim that the treaty has become part of
national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain
in force. According to dualists, national judges never apply international law, only international law that
has been translated into national law.
◦ In some countries, such as the UK for instance, the dualist view is predominant. International law is only
part of British national law once it is accepted in national law. A treaty
◦ "has no effect in municipal law until an Act of Parliament is passed to give effect to it.”
◦ The United States of America has a "mixed" monist-dualist system; international law applies directly in
US courts in some instances but not others. US Constitution, art. VI, does indeed say that treaties are part
of the Supreme Law of the Land, as suggested by the quote above; however, its Supreme Court, as late as
the recent case of Medellín v. Texas, has restated that some treaties are not "self-executing." Such treaties
must be implemented by statute before their provisions may be given effect by national and sub-national
courts.
◦ Pakistan, Australia, Canada, India, Israel and the United Kingdom.