Relationship between international law and domestic

The relationship between national and international law

relationship between international law and domestic

The relationship between international law and domestic law is object of different theories among which the most relevant are: the Monist Theory, Monist Inverse. [1] Thus, while international law involves the regulation of the relationship between sovereign states, domestic law confers rights to persons and. The relationship between national and international law. An international norm approved by Switzerland automatically becomes part of Swiss.

Aside from a broad theoretical discussion, the relationship between international and national law delivers very practical consequences in a given legal order. Furthermore, to some extent, the prevailing of one over the other could give rise, in practice, to very unfavorable legal circumstances. Hence, many times, international law and national law have varying determinations, and, in the majority of cases, the former is considered to be more modern with respect to human rights and issues of freedoms.

Evidence shows that the primacy of international law over domestic law is a modern phenomenon, and is often regarded to as a benchmark of a democratic state.

By contrast with the pre-World War II situation, momentum toward accepting the primacy of international law is becoming more and more evident. The first is whether international law norms should be incorporated in the domestic legal order, and the second is whether the incorporated treaty should prevail over laws or the constitution itself. Nevertheless, the two theories do not explain the whole of the problem, but largely lay down the outline within which the question can be solved.

The monist model, 11 on the one hand, considers there to be just one legal order, and thus international and national law are part of a single legal order. That being said, international law is directly incorporated into domestic law once it becomes binding.

The Relationship Between Domestic and International Law: Part 1

By contrast with the monist theory, the dualist theory regards international law and national law as two different legal orders, situated horizontally, each competing with the other. The same situation, in our view, appears in the Kosovo Constitution, since the set of provisions that regulate the relationship in question provide for a substantially distinctive rapport between international law and the Kosovo legal order.

As a result, one would, at least logically, seek to locate Kosovo's constitutional order within one of the above models, while acknowledging the distinctiveness of the former. On the other hand, as Eric Stein acknowledges, most Eastern European countries have accepted the doctrine of incorporation of treaties into the domestic legal order, 20 which suggests that the post-communist European countries have followed a logic that accepts the monist model.

Kosovo is thus thought to have followed the same line. This chapter, however, aims to analyze the relationship between internationally binding agreements treaties and the Kosovo domestic legal order. As such, it is worth noting that international treaties can be part of a monist legal order—such as that of Kosovo—yet their direct applicability and effect are not to be automatically assumed.

Hence, particular concern should be paid to the latter question, as the manner in which the treaty becomes applicable is of great importance. Internationally binding treaties, as opposed to rules of customary international law, become effective after state authorities approve their legal power. The engagement of the parliament Assembly in treaty ratification—within the abovementioned fields—makes the treaty-making process more legitimate domestically in issues of great importance.

Overall, it can be asserted that internationally binding agreements, from a Kosovo constitutional perspective, are made binding due to an interaction between the President of the Republic and the Assembly, or simply the President of the Republic.

To look more closely at the question of this chapter, it is necessary to scrutinize what exactly is prescribed by the Constitution of Kosovo in terms of the relationship between treaties and national law. As such, Article International agreements ratified by the Republic of Kosovo become part of the internal legal system after their publication in the Official Gazette of the Republic of Kosovo.

They are directly applied except for cases when they are not self-applicable and the application requires the promulgation of a law.

relationship between international law and domestic

The first concerns clarifying whether the relationship between international treaties and national law is based on a monist or dualist model.

The second concerns clarifying which doctrine applies: And the third concerns clarifying the way in which a binding treaty becomes applicable.

As for the first question, the above provision institutes a monist system of relationship between international and domestic law. That being said, once a treaty becomes ratified and effective, it ex proprio vigore becomes part of national law.

In order to become binding, however, it must be published in the Official Gazette. Hence, there is almost nothing that can be used to counter-argue the monist model of relationship between treaties and national law; however, the position of treaties in the Kosovo legal order is still to be explored. On the other hand, given that ratified treaties become part of the internal legal order, it can be argued that the Constitution of Kosovo has endorsed the doctrine of incorporation.

Besides establishing a monist system of relationship between binding treaties and domestic law, Article Being directly applicable means that the ratified treaty does not need any further law to be enacted for it to be legally effective, and thus institutions are obliged to enforce it directly. If a treaty is not self-applicable, it needs to be concretized through a domestic legal act, for example a law, 30 and it can be observed that the Constitution of Kosovo distinguishes between self-applicable and non-self-applicable treaties.

This, in our opinion, might lead to a faulty order, as if the treaty is not self-applicable, an individual cannot directly rely on the rights and duties prescribed therein 31 until the time the national legislature adopts a law. This, of course, results in legal uncertainty and allows domestic institutions to exercise their discretion when qualifying a treaty as self-applicable or not, 34 which altogether misbalances the principles of self-applicability and might lead to poorer protection of international norms in the domestic context.

Thus, the constitutional provision in question—given that it makes a distinction between self-applicability and non-self-applicability—may be considered as defective in view of the direct applicability of treaties, and might altogether lead to legal uncertainty.

relationship between international law and domestic

Having analyzed the abovementioned provision, and in light of this analysis, it can be argued that the Constitution of Kosovo embraces a monist model of relationship between international treaties and domestic law, with the establishment of the doctrine of incorporation, while allowing internationally binding agreements to be directly applicable.

Though treaties form part of national law, and though they are directly applicable, the position taken by the norms of binding treaties in the domestic legal order may be questioned. The Constitution of Kosovo, as a result, provides an answer as to what position treaties have in Kosovo's domestic legal order. Being subject to the Constitution of Kosovo—though prevailing over national laws—treaties cannot thus lead to a pure monist system.

Primacy over national laws, and automatic incorporation upon ratification in the domestic legal order make treaties part of a single legal order, together with national law however. The primacy of the Constitution of Kosovo over ratified treaties is unquestionably linked with Article Laws and other legal acts shall be in accordance with this Constitution. Furthermore, one can argue that, although a ratified treaty will be directly incorporated in national law, it should be domestically constitutional; otherwise, its incorporation should be contested or barred.

Besides regulating the position of ratified treaties, the Constitution of Kosovo features a further provision regarding international treaties.

The Relationship Between Domestic and International Law: Part 1 - The Student Lawyer

The constitution thus reads: More broadly, in light of the above provision, it can be argued that, besides placing ratified treaties above domestic laws, the Constitution of Kosovo allows for the rules of international organizations of which Kosovo is a member, to be directly incorporated and applied within Kosovo's legal order.

A state cannot use provisions of its own law as a defence to a claim against it for alleged breaches of international law. If a state has signed to a treaty and its domestic laws violate any provisions of that treaty, the state must change said laws in order to fulfil its international obligations.

The relationship between international law and municipal law should be viewed as one of cooperation and symbiosis. As such, international law should recognise doctrines and concepts created by municipal law. In the Brazillian Loans case [15] the Permanent Court of International Justice the predecessor to the ICJ decided that due regard must be paid to the decisions of municipal courts as they provide jurisprudential guidance on the effect of the particular domestic law in the municipal sphere.

As such, they must present said laws in the form of evidence before the court. As part of the continuous evolution of international law, the ICJ must recognise concepts created by municipal law which historically have had effect on international relations.

relationship between international law and domestic

Thus, where legal issues arise concerning a matter which is not covered by international law, reference will be made to the relevant rules in municipal law. However, one can also argue that there has been a fusion of the operating fields of both concepts. It must be modified or eliminated in order to conform to international law.

Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.

  • Monism and dualism in international law
  • The relationship between national and international law

However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail.

relationship between international law and domestic

In a dualist system, however, the original international law has been translated into national law - if all went well - but this national law can then be overridden by another national law on the principle of " lex posterior derogat legi priori ", the later law replaces the earlier one.

This means that the country - willingly or unwillingly - violates international law. Examples[ edit ] 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.

In other countries this distinction tends to be blurred. In the vast majority of democratic countries outside the Commonwealth, the legislature, or part of the legislature, participates in the process of ratificationso that ratification becomes a legislative act, and the treaty becomes effective in international law and in municipal law simultaneously. For instance, the Constitution of the United States provides that the President 'shall have power, by and with the advice and consent of the Senateto make treaties, provided two-thirds of the Senators present concur'.

Treaties ratified in accordance with the Constitution automatically become part of the municipal law of the USA". Texas[8] has restated that some treaties are not "self-executing. Similarly with regard to customary international law, its Supreme Court stated, in the case of the Pacquete Habanathat "international law is part of our law.