3. international and national law

- Why important, need to clarify, solve what problems?

§        The relationship between international law and national law is one of the most intriguing and complex issues that could arise in the context of the application of international law.

o       International law is the law that governs that affairs of sovereign independent states among themselves. Consisting of rules & principles of general application dealing with relation among states, intel organizations, private individuals minority groups, transnational companies. 

o       National law is the law of a state or country and in that respect is opposed to international law which comprises regulations which states regard as binding upon them in their mutual relations.

à different sphere:National law regulates the conduct of individuals while international law regulates the behavior of states.

à national law is concerned with the domestic affairs of the state whereas international law is concerned with the external affairs of the state (its foreign relation)

à there are unavoidably some level of friction or contention between the spheres of international and national law.

§  There are a lot of problems: how the rules of international law operate in national legal system; are they treated by states on the same footing as their own national law; in case of conflict between international and national law, which law is prevails; and how an international court decide an issue involving a rule of national law?

à whether international law and national law can be said to form an accord being manifestation if  single notion of law, or whether international law comprises an independent system of law different fundamentally from national law.

Monist

-   I & N law are two components of a single body of knowledge called law

àrules of intel law directly automatically applied

-   intel law applied directly by national judge, directly cited by citizens

- conflict: intel law prevail

Dualist

-   is different, independent system

à (1) suitable with national lawà apply

(2) not suitable

à need translation of the latter into the former

àwithout translation, intel law not exist as law

-   judge never apply unless translationsà amended or purged to conform with intel law

-   intel court apply intel law, national court apply national law

In practice, base on preference

-   incorporation(monism): intel law as a part of municipal law and apply by municipal court

-   transformation(dualist): intel law as a part of municipal law only after process of transformation into municipal law via means of a statute or an act of parliament

eg:

-   Incorporation: Germany, Greece, Repuclic of Korea, Japan: accept rules of intel law as a part of national lawà enter in force.

-   Transformation:UK: without legislation, made by parliament, treaty is not.. US: nature of treaties self-executing treaties: containing a provision that says treaty will be applied in parties’s municipal courts without having adopting any domestic enabling legislation. à automatically and directly applied. Non self-executing treaty: that have no such provision. à need legislation and translation