The Relationship between Public International Law
and National Law
Public International Law and national law (municipal law as known in the
Common Law Countries) are two legal systems. National law governs the domestic
(internal) relations between the official authorities of a State and between these
authorities and individuals as well as the relations between individuals
themselves. Public International Law governs primarily the relations between
States.
With the rise and extension of Public International Law, a question begins to arise
as to the relationship between the national law of the States and the Public
International Law. This question gives rise to many practical problems. What is the
status of the rules of Public International Law before a national court? What is the
status of the rules of national law before an international court? Which rule does
prevail in a case of conflict between the two laws?
The answers to the above questions are presented in the following sections:
section one deals with the theories dealing with the relations between International
Law and national law; section two deals with National Law before International
Courts; and section three deals with International Law before National Courts.
Section 1: The Theories Dealing with the Relations between International Law
and National Law
There are two major theories on the relationship between Public International
Law and national law. The first is the dualism theory. The second is the monism
theory.
The dualism theory considers that International law and national law are two
separate legal systems which exist independently of each other. Each of these two
systems regulates different subject matters, function on different levels, and each is
dominant in its sphere. Public International Law primarily regulates the conduct of
sovereign States. National law regulates the conduct of persons within a sovereign
State. On this view, neither legal system has the power to create or alter rules of the
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other. The national law has a supremacy over the International Law; in the case of
a conflict between International Law and national law, a national court would apply
national law.
The monism theory, which upholds the unity of all law, regards International Law
and national law as forming part of the same legal system (order). It argues that both
laws are based upon the same premise, that of regulating the conduct and the welfare
of individuals. However, it asserts the supremacy of International Law over national
law even within the national sphere; in the case of a conflict between the two laws,
International Law is supreme.
Because the above opposing theories, in reality, do not adequately reflect actual
State practice, the scholars in each side have forced to modify their original positions
in many respects, bringing them closer to each other, without, however, producing a
conclusive answer on the true relationship between International Law and national
law. This fact has led some legal scholars to pay less attention to these theoretical
views and to prefer a more empirical approach seeking practical solutions in a given
case. The method of solving a problem does not inquiry deeply into theoretical
considerations but aims at being practical and in accord with the majority of States
practice and international judicial decisions. On this view, it is more useful for us
to leave the theoretical controversy aside and direct our attention to the attitude of
International Law to national law and the attitude of the various national laws to
International Law; these are what are discussed in the following two sections.
Section 2: National Law before International Courts
International Law, in the international sphere, has a supremacy over national
law. However, this principle does not mean that national law is irrelevant or
unnecessary. International Law does not ignore national law. National law has been
used as evidence of international custom or general principles of law, which are both
sources of International Law. Moreover, International Law leaves certain questions
to be decided by national law. Examples of these questions are those related to the
spheres of competence claimed by States as regards State territory, territorial sea,
jurisdiction, and nationality of individuals and legal persons, or those related to
obligations to protect human rights and the treatment of civilians during belligerent
occupation. Thus, the international court may have to examine national law related
to these questions in order to decide whether particular acts are in breach of
obligations under International Law, particularly, treaties or customary law.
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Section 3: International Law before National Courts
The attitude of national law to International Law is not as easy to summarize as
the attitude of International Law to national law. This is because the laws of
different States vary greatly in this respect. However, States are, of course, under a
general obligation to act in conformity with the rules of International Law and they
cannot evade from their international obligations under the pretext of their domestic
was; otherwise, they will be responsible for the violations of international rules,
whether committed by their legislative, executive or judicial authority. Further,
States are obliged to bring national law into conformity with their obligations under
International Law; for example, treaties may require a national legislation to be
promulgated by the States parties. Nevertheless, International Law leaves to States
the method of achieving this result. States are free to decide how to include their
international obligations into their national law and to determine which legal status
these have internally. In practice, on this issue there is no uniformity in the different
national legal systems. However, the prevailing position appears to be dualist,
regarding International Law and national law as different systems requiring the
incorporation (adoption, transformation and reception are other concepts used) of
the international rules on the national level.
Actually, the most important issues of the attitude of national legal systems to
International Law concern the status of international customary law and international
treaties. On these issues, the attitude of various national legal systems varies.
The survey of the attitudes adopted by various countries of the Common Law and
Civil Law traditions leads to the following conclusions. The first of these is that
most countries accept the operation of customary rules within their own
jurisdictions, providing there is no conflict with existing laws, i.e., if there is a
conflict, national law is supreme; some countries allow International Law to prevail
over national law at all time. The second conclusion is that as regards treaties, in
some countries, certain treaties operate internally by themselves (self-executing)
while others require undergoing a process of internal legislation. Some countries
allow treaties to supersede all national laws (ordinary laws and the constitution),
whether made earlier or later than the treaty, while others allow treaties to supersede
only ordinary laws and only that made earlier than the treaty. Others adopt opposite
positions.
