Relationship between international and national law

8.1.1 Three different conceptions of the interplay between the international order and municipal legal systems

Do international rules make up a body of law not only different but autonomous and distinct from municipal/national legal system а question of much controversy.

Three different theories

1 Monistic view 1 – supremacy of municipal (national) law

· Developed by German scholars – 18th and 19th centuries – Moser, Hegel, Bergbohm, Zorn, Wenzel

· Believed that national law subsumed and prevailed over international legal rules

· Therefore international law proper does not exist on its own, it’s just the ‘external law’ of national legal systems

· Reflected the extreme nationalism and authoritarianism of a few great powers

2 Dualistic doctrine – existence of two distinct sets of legal orders (int’l & municipal)

· Developed by German Triepel and Italian Anzilotti

· Britain and US favoured this theory in their case law and in US constitution

· Recognized the authority of int’l customary rules and ratified treaties approved by competent constitutional authorities

· International rules only considered binding to the extent that they had been approved or accepted by the country’s foreign policy-makers

· Starts from the assumption that int’l law and municipal legal systems are two distinct and formally separate categories of legal orders

· These two systems differ as to their

o Subjects (domestic – individuals and groups, international – states)

o Sources (domestic – parliamentary systems & courts, international – treaties and custom)

o Content of rules (domestic – regulating internal functioning of the state, rel. between state and individual, international – relations between states).

· Therefore this theory holds that int’l law cannot directly address itself to individuals; it must be transformed from int’l to nat’l law in order to have any effect on individuals.

· Inspired by a moderate nationalism, but also states to ‘exit’ from int’l law by not turning it into national law.

3 Monistic view 2 - unity of various legal systems and primacy of int’l law

German, Kaufmann, 1899

· Theory born from assumption of states self-interest clashing against common interests

· Int’l rights and obligations accrue to and are imposed on not only States but individuals

· Superiority of international rules over national legal systems

· Immediate applicability of international rules within national legal systems of states, without need for transformation of those rules from int’l to national

· Fact that international rules, taking precedence over national legislation, automatically repeal any national laws contrary to them

· This theory got squashed by the more sophisticated and realistic theory of Triepel. It looked more like aspiration than a description of reality.

Nonetheless, it became a popular idea after WWI – Austrian Kelsen, Austrian Verdoss, and French Scelle – Their theory:

· There exists a unitary legal system, embracing all the various legal orders at all levels

· Int’l law is at the top of the pyramid and validates or invalidates all legal acts of any other legal system. Therefore, municipal law must conform to int’l law

· Transformation of int’l law into domestic law is not necessary because they are part of one normative system

· Subjects of int’l law are not radically different from those of national law – individuals are seen as principal subjects, in int’l law taken into account in their roles as state officials.

· Because int’l law is superior to domestic law, it can be applied as such by domestic courts, without any need for transformation. BUT, if Constitution forbids this, they allowed some need for national application – but this was a question of national law, not affecting the legitimacy of int’l law

· National courts can be made to apply national laws that are contrary to int’l rules, but they would incur international state responsibility for doing so

· Therefore international legal system controls, imperfectly, all national systems.

· Ideological underpinnings of this theory – internationalism and pacifism.

8.1.2 Modern changes in the relation between the international and municipal law

· Monistic Theory 1 – devoid of scientific value and intended to underpin ideological and political positions

· Dualistic Theory – did reflect legal reality of 19th and 20th century, but couldn’t explain some things, like the fact that some int’l rules do impose obligations on individuals (e.g. piracy)

· Monistic Theory 2 – nice in theory, but really utopian and did not reflect reality. But it had important psychological impact and helped to introduce idea of responsibility of state officials as individuals

Today

· International law no longer constitutes a sphere of law tightly separate and distinct from the sphere of law of national legal systems

· It isn’t a different legal realm from national law, it has had a huge daily direct impact on national law

· Many international rules now address themselves directly to individuals, without intermediary of national systems (e.g. international crimes) or grant individuals rights before international bodies (e.g. right to petition).

· Int’l law is no longer jus inter potestates (law between states), it also embraces individuals.

· Int’l law gradually headed towards a civitas maxima (human commonwealth encompassing individuals, states, and other aggregates cutting across state boundaries).

· Increasingly becoming a jus inter partes (a body of law governing relations among subjects in a horizontal manner), rather than a jus super partes (law governing from above).