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International law and national law16

One of the most important areas of international law for the practicing lawyer is the question of its relationship with national law, such as the domestic law of the UK. While it is generally true that international law is concerned with the legal relations between sovereign states and national law is concerned with the legal relations of individuals within a state, there is considerable overlap between the two legal systems. […] Indeed, now that international law confers rights and obligations directly on individuals - as with human rights and war crimes - it is becoming even more important to know precisely how the rules of one system will affect the decision-making process in the courts of another. […]

Theories Monism

The monist theory supposes that international law and national law are simply two components of a single body of knowledge called 'law'. 'Law' is seen as a single entity of which the 'national' and 'international' versions are merely particular manifestations. Thus, both sets of rules operate in the same sphere of influence and are concerned with the same subject matter. Moreover, because they operate concurrently over the same subject matter, there may be a conflict between the two systems: international law may require one result and the provisions of national law another. If this happens in a concrete case, international law is said to prevail. For example, if the international law of human rights stipulates that no person may be imprisoned without trial, under the monist theory a national court would have to give effect to this even though a clear rule of national law said otherwise.

Although all monists suppose the superiority of international law in cases of conflict, there are several different explanations as to why this should be so. Hans Kelsen, a noted legal theorist, sees the superiority of international law as a direct consequence of his 'basic norm' of all law. This basic norm - or fundamental principle from which all law gains its validity - is that 'states should behave as they customarily have behaved'. Kelsen is 'monist-positivist' in that international law derives from the practice of states and national law derives from the state as established in international law. International law is, therefore, a 'higher' legal order. In contrast, Hersch Lauterpacht, once a judge of the ICJ, sees international law as superior because it offers the best guarantee for the human rights of individuals. Indeed, the 'state' itself is seen as a collection of individuals, rather than a legal entity in its own right. International law is said to control or override national law because the latter cannot be trusted to protect individuals and, more often than not, because it is used to persecute them. International law prevails because it is the guarantor of individual liberty, and clearly this echoes the current thinking of many international human rights lawyers. A similar view sees the relationship between international law and national law as monist, with international law being relatively superior, but with both systems subject to a higher legal order - the law of nature. This is the 'monist-naturalist' theory and it roots the validity of all law in natural law […]. According to this view there is a hierarchy of legal orders, with natural law at the summit, followed by international law, followed by national law.

Obviously, these diverse opinions about why international law should take priority over national law cannot all be correct. They are part of the wider debate about the validity of international law as a 'legal' system […]. However, what they have in common is the basic monist tenet that international law and national law are part of the same hierarchical legal order. Consequently, norms of international and national law must be ranked in order of priority should a conflict occur in a concrete case. In this sense, international law is superior. In practice, this means that the legal institutions of a state, such as its courts and legislature, should ensure that national rights and obligations conform to international law. More importantly, if they do not, the national court should give effect to international law and not its own domestic law.