International Law To Domestic: Understanding The Transition Process

The relationship between international law and domestic law is a complex and multifaceted topic that has long been a subject of active concern and debate among legal scholars and practitioners. This relationship can be broadly categorised into two models: monism and dualism. In monist systems, international law is seamlessly incorporated into national law upon the ratification of international treaties, as seen in countries like the Netherlands. Conversely, dualist systems view international and national law as separate entities, requiring translation of international law into national legislation for it to be applied by domestic courts. The United States, for instance, exemplifies a dualist system. The process of international law becoming domestic law is influenced by factors such as a country's constitutional provisions, its legal traditions, and the nature of the international law in question.

The role of custom

Customary international law is an aspect of international law that involves the principle of custom. It is derived from the consistent conduct of states acting out of a belief that the law required them to act that way. It is considered one of the primary sources of international law by the International Court of Justice (ICJ), jurists, the United Nations, and its member states.

Customary international law is critical to the role of human rights law. It is a matter of universal jurisdiction, meaning that any national court may hear extraterritorial claims brought under international law. The domestic enforceability of customary international law is evident in the case of Filartiga v. Pena-Irala, which clarified two key points. Firstly, it confirmed that customary international law is a matter of universal jurisdiction. Secondly, it established that domestic courts may discover international legal principles by consulting executive, legislative, and judicial precedents, international agreements, the recorded expertise of jurists and commentators, and other similar sources.

There is a class of customary international law called jus cogens, which has peremptory force and cannot be abrogated by domestic law or treaty. Jus cogens is generally deemed self-executing. It includes non-derogable rights that are accepted by the international community as fundamental principles of natural law. Examples include various international crimes such as slavery, torture, genocide, war of aggression, or crimes against humanity.

Customary international law is formed when two requirements are met. Firstly, there must be a state practice that is sufficiently widespread, representative, and consistent, showing that a significant number of states have used and relied on the rule in question, and the concept has not been rejected by a significant number of states. Secondly, states must be motivated by a belief that they are legally compelled to accept the legitimacy of the rule (opinio juris).

The recognition of customary international law can range from simple bilateral recognition to worldwide multilateral recognition. Regional customs can become customary international law in their respective regions but do not become customary international law for nations outside the region.

Customary international law can be directly incorporated into national law upon ratification in some countries with a monist system. In contrast, for states with a dualist system, international law must be translated into national legislation before it can be applied by national courts.

In conclusion, customary international law plays a crucial role in shaping human rights law and is recognised as a primary source of international law. It is formed through consistent state practices and the belief in legal obligation (opinio juris). The enforceability of customary international law varies depending on the domestic legal system, with monist systems directly incorporating it into national law upon ratification, while dualist systems require translation into national legislation.

The role of treaties

Treaties are a crucial source of international law, encompassing a range of written agreements between states, such as conventions, pacts, and charters. They serve various purposes, from peace settlements and alliances to protecting human rights. A treaty is formed by the express consent of its parties, and its text may allow for reservations to accommodate a greater number of states with differing objectives.

In monist systems, international law is automatically incorporated into national law upon the ratification of a treaty. The domestic enforceability of treaties in monist systems is evident in the example of the Netherlands, where certain treaties are considered constitutional law, limiting or extending the powers of Dutch offices.

On the other hand, dualist systems require international law to be translated into national legislation before it can be applied by national courts. An example is England, where a treaty must be incorporated into English Law to be enforceable in courts.

The United States provides an interesting variation, as ratified human rights treaties and customary international law are considered the law of the land due to the Supremacy Clause of the U.S. Constitution. However, not all treaties are self-executing, and additional legislation is often needed to grant individuals private rights under these treaties.

The distinction between monist and dualist systems is crucial in understanding how treaties function in the interplay between international and domestic law. While monist systems provide a more direct route to incorporating international law into national law, dualist systems require additional steps to ensure domestic enforceability.

International law in municipal law

The relationship between international law and municipal law depends on a country's domestic legislation. There are two schools of thought: dualism and monism.

Dualist systems regard international law and municipal law as separate. In these systems, international law must be translated into national legislation before it can be applied by national courts. For example, in the UK, a treaty becomes part of domestic law only if relevant legislation is adopted.

In contrast, monist systems consider international and municipal law as parts of a single legal system. In these systems, the act of ratifying an international treaty immediately incorporates that international law into national law. For instance, the Netherlands is an example of a monist system. While the country has implementing legislation, it is still considered a monist system because international law operates automatically within the national legal system.

The Constitution of Kosovo, which is influenced by international human rights law, provides for a monist model of the relationship between international law and national law. It recognises the direct applicability and incorporation of treaties in the domestic legal order and, to an extent, of customary international law. The Constitution establishes that:

> "Ratified international agreements and legally binding norms of international law have superiority over the laws of the Republic of Kosovo."

However, the direct applicability of customary international law remains uncertain. While the Constitution acknowledges the existence of customary international law, it does not explicitly provide for its direct applicability.

The relationship between international and national law

The relationship between international law and national law is a matter of active concern in many legal orders. The interaction between the two is viewed through two different legal traditions: monism and dualism.

Monism

Monism, also known as incorporationism, asserts that international and national law are part of a single legal system. In this system, international law prevails over domestic law and is directly incorporated into it once it becomes binding. The act of ratifying an international treaty immediately incorporates that international law into national law. However, the degree of incorporation may vary. Some states directly incorporate international obligations into domestic law upon ratification. Others only do so for self-executing treaties.

The Constitution of Kosovo, for example, provides for a monist model, recognising the direct applicability and incorporation of treaties in its domestic legal order. It also acknowledges the precedence of international law, though not according it a highly privileged position. The monist model is also seen in the Netherlands, where international law operates automatically within the national legal system.

Dualism

Dualism, on the other hand, regards international and national law as separate and horizontal systems. In this view, international law is not directly applicable domestically and must be translated into national legislation before it can be applied by the national courts. An example of this is England, where a treaty has no effect in domestic law unless it is made part of it through legislative action.

Practical Implications

The prevailing theory, whether monism or dualism, can have very practical consequences in a given legal order. The primacy of international law over domestic law is often regarded as a benchmark of a democratic state, and this momentum towards accepting international law's primacy is becoming more evident.

The supremacy of the constitution

The relationship between international law and municipal law rests on two principal schools of law. The dualist model and the monist model.

Dualist Model

The dualist model of international law states that international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts. In other words, international law is separate from municipal law.

Monist Model

The monist model of international law states that international law does not need to be translated into national law. The act of ratifying an international treaty immediately incorporates that international law into national law.

The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. It provides that state courts are bound by, and state constitutions subordinate to, the supreme law. However, federal statutes and treaties must be within the parameters of the Constitution.

The Supremacy Clause is a cornerstone of the United States' federal political structure, assuming the underlying priority of federal authority. It is a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law.

The Supremacy Clause has been interpreted by the US Supreme Court to mean that Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Judicial system to interpret what the Constitution permits. The Court has held that the Supremacy Clause and the judicial power granted in Article III give it the ultimate power to review state court decisions involving issues arising under the Constitution and laws of the United States.

In conclusion, the Supremacy Clause of the US Constitution ensures that federal law, including treaties, takes precedence over state laws and state constitutions. This clause is a key aspect of the federal political structure, upholding the priority of federal authority.

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