Unit 6. The implementation of international rules within national systems relationship between international and national law

THREE DIFFERENT CONCEPTIONS OF THE INTERPLAY BETWEEN THE INTERNATIONAL ORDER AND MUNICIPAL LEGAL SYSTEMS

The question whether international rules make up a body of law not only different but also radically autonomous and distinct from municipal (or national) legal orders has been the subject of much controversy. Three principal theoretical constructs have been advanced: first, the so-called monistic view advocating the supremacy of municipal law, then the dualistic doctrine, suggesting the existence of two distinct sets of legal orders (international law, on one side, and municipal legal systems on the other), and finally the monistic theory maintaining the unity of the various legal systems and the primacy of international law.

In short, under the first doctrine national law subsumed, and prevailed over, international legal rules, which were 'external State law'. It followed that international law proper did not exist, for it was made up of the 'external law' of the various members of the international community. International law was not a body of binding standards of behaviour. It was only a set of guidelines whose pro­visional value was removed as soon as a powerful State thought that they were contrary to its interests. Thus, this doctrine actually asserted the existence of a single set of legal systems, the domestic legal orders, and denied the existence of inter­national law as a distinct and autonomous body of law. It clearly reflected the extreme nationalism and authoritarianism of a few great Powers, anxious to protect their respective interests.

Instead, the dualistic approach was based on the attitude towards international law taken in such countries as Britain and the United States. English case law and the US Constitution recognized the authority of international customary rules and duly ratified treaties approved by the competent constitutional authorities. Although international rules were only considered internally binding to the extent that they had been approved or accepted by the foreign policy makers (as well as, in the case of treaties, by the national legislators), the fact remains that these States in principle intended to bow to international law.

Clearly, this conception was inspired by a moderate nationalism: it advocated the need for national legal systems to comply with international rules by turning them into national norms binding at the domestic level. However, it envisaged at the same time a sort of 'emergency exit' for States in the case of serious conflict between international and national values: since international law is effective to the extent that it is actually applied within domestic legal systems, when national interests are regarded as prevalent States may go so far as to thwart the legal import of inter­national prescriptions by refraining from implementing them at the domestic level (although of course by so doing they may incur international responsibility).

The third theory, the monistic conception advocating the primacy of international law, first outlined in 1899 by the German W. Kaufmann (1858-1926), was pro­pounded as a fully fledged doctrine after the First World War, between 1920 and 1934, by the Austrian H. Kelsen (1881-1973) and was subsequently embraced by a number of distinguished scholars. This theory is based on a number of postulates. First, there exists a unitary legal system, embracing all the various legal orders operating at various levels. Second, international law is at the top of the pyramid and validates or invalidates all the legal acts of any other legal system. Consequently, municipal law must always conform to international law. In cases of conflict, the latter declares all domestic rules or acts contrary to it to be illegal. A further corollary is that the 'transformation' of international norms into domestic law 'is not necessary from the point of view of international law'. This is because international and national law are 'parts of one normative system'. Third, the subjects of international law are not radically different from those of national law: both in municipal law and in international law individuals are the principal subjects of law, although in international law individuals are often taken into account in their position as State officials. In addition, the sources of international law belong to a legal system that is hierarchically superior to municipal systems, not radically different from them.

MODERN CHANGES IN THE RELATION BETWEEN INTERNATIONAL AND MUNICIPAL LAW

At present, as we shall see, the dualistic conception is no longer valid in its entirety, whereas some of the postulates of the conception put forward by Kelsen are gradually taking a foothold in the international community. In short, international law no longer constitutes a sphere of law tightly separate and distinct (subject to one or two exceptions) from that of national legal systems. In many areas international law has made significant inroads into national legal systems, piercing their 'armour'. It no longer constitutes a different legal realm from the various municipal systems, but has a huge daily direct impact on these systems. In addition, many international rules address themselves directly to individuals without the intermediary of national legal systems: they impose obligations (this chiefly applies to rules on international crimes), or grant them rights (for instance the right to petition international bodies).

Those obligations must be fulfilled, and the rights may be exercised, regardless of what national legal orders may provide. In short, in many respects individuals have become international legal subjects, associated to sovereign States. Thus, international law is no longer jus inter potestates (a law governing only relations among sovereign entities). It also embraces individuals, by directly legitimizing, or issuing commands to, them. Subject to the limitations, it is gradually heading towards a civitas maxima (a human commonwealth encompassing individuals, States and other aggregates cutting across the boundaries of States). By the same token, it is increasingly tending to become, more than a jus inter partes (a body of law governing relations among subjects 'in a horizontal manner'), a jus super partes (a corpus of legal standards regulating international dealings 'from above').

INTERNATIONAL RULES ON IMPLEMENTING INTERNATIONAL LAW IN DOMESTIC LEGAL SYSTEMS

Whichever of the three theories outlined above is chosen, it is a fact that most international rules, to become operative, need to be applied by State officials or individuals within domestic legal systems. National implementation of international rules is thus of crucial importance. One would therefore expect there to be some form of international regulation of the matter or at least a certain uniformity in the ways in which domestic legal systems put international law into effect. The reality is quite different, however.

International law provides that States cannot invoke the legal procedures of their municipal system as a justification for not complying with international rules. This principle has been firmly stated by both the PCIJ (in Polish Nationals in Danzig, at 24, und in Free Zones, at 167) and other courts (for example, in Georges Pinson, at 393-4, 3nd in Blaskid 1996, at §7), and is now laid down, with regard to treaties, in the 1969 Vienna Convention on the Law of Treaties, Article 27 of which provides that 'A party [to a treaty] may not invoke the provisions of its internal law as justification for its failure to perform a treaty'.

Apart from the general rule barring States from adducing domestic legal problems for not complying with international law, and the treaty or customary rules just mentioned that impose the obligation to enact implementing legislation, international law does not contain any regulation of implementation. It thus leaves each country complete freedom with regard to how it fulfils, nationally, its international obligations.

TRENDS EMERGING AMONG THE LEGAL SYSTEMS OF STATES