Relation Between International Law And Domestic Law

Running head: RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW1

Relation between International Law and Domestic Law

Student’s Name

Institutional Affiliation

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW2

Relation between International Law and Domestic Law

In examining the relationship between Domestic laws and international laws, questions

on their nature of co-habitation and supremacy of each set of the laws arise. The concepts of

monism and dualism attempt to explain the relationship between the two sets of laws in two

contradicting theories. Whereas domestic law rules over the behavior of the citizens in a given

country, the international law governs the actions and behaviors of nations and their bodies (Hall,

2013). Domestic laws mostly result from legislative works and customs in a country while

International laws arise from treaties, formerly agreed upon by two or more countries. Domestic

law and international law cohabit with each other symbiotically in their application, but

occasionally, international law may show supremacy in cases where both sets of laws seem to

contradict.

Both international and domestic laws contain some opposing ends about regulations and

legal orders according to the dualism doctrine. Proponents of the dualism doctrine believe there

is a total difference between the two sets of law and maintains the view that changes in one legal

system do not bring about changes in the other (Hall, 2013). Sometimes, it is argued that the

relationship between the two branches of law does not exist at all and that the two systems of law

are complete and distinct from each other. In contrast, the doctrine of monism argues that

international law always remains supreme in the eye of the domestic laws since the state

represents a group of individuals who have agreed to abide by the supremacy of international

laws.

Nevertheless, the reality is that the two branches of law, in one way or the other, are

related, and one legal system has a considerable effect on the rules of the other (Korchev, 2012).

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW3

Many previous cases clearly show a connection between the two sets of rules in the sense that if

a state has signed a treaty and its domestic laws contradict any provision of the treaty, such a

state can not plead its domestic law as an excuse for failure to obey its obligations under the

treaty. The state has an obligation to ensure that its laws are in accordance to the provisions of

the treaty and the general rules of international law. It is therefore, the responsibility of a state

that has signed a treaty to amend its domestic laws so that they fit the obligations of the state

under the treaty. For example, the international court of justice in the case of Free zones ruled

that France could not rely on its domestic laws in such a manner as to limit its obligations under

the international law.

The above mentioned principle was reinforced by the court in its opinion in the Greco-

Bulgarian Communities case where it decided that it is a common principle of international law

that in a situation of relations between two or more states that are contracting parties to a treaty

(“Case of the Free Zones of Upper Savoy and the District of Gex” n.p). In such a scenario, the

provisions of the domestic law will not take preference over those of the international treaty.

Since the international law reins supreme over the local laws, it is mandatory for for the

individual countries to abide by the requirements of the international statutes and regulations.

Thus if a country signs a treaty and by any chance, its domestic laws contradict any of the

provisions of the treaty, such a state ought to amend the said law to ensure it is in line with the

provisions of the treaty. The above case proves that international law is superior to domestic law

and its provisions are usually given the primacy in cases where there is a conflict between the

two systems of law. The two systems of law are therefore said to be linked and symbiotically

related to each other in a way that the international law is superior to the domestic law.

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW4

Although international law is superior to domestic law, decisions of the municipal courts

which implements domestic laws ought to be considered by the court. The permanent court of

justice, the predecessor of the International court of justice, in the case of Brazilian agreed that

due regard, must be given to the results of the municipal courts, which mostly implements

domestic laws (“Case concerning the Payment in Gold of Brazilian Federal Loans Contracted in

France” n.p). According to the court such decisions provide jurisprudential guidance regarding

the impacts that might result from a particular domestic law in the municipal sphere. This case

serves as evidence that there exist a relationship between international and domestic laws. The

kind of a relation that exist between these two branches of legal systems should be viewed as

beneficial for both types of laws are utilized in the process of coming up with a solution (Hall,

2013). As a result, both the internal and municipal must show respect to each other while dealing

with a conflict between the two systems of law. Both laws have to intermarry in order to come

up with rhyming effects if a provision of either branch is to be applied. In some scenarios, both

international and domestic laws are applied simultaneously in order to achieve the most suitable

solution. Therefore, there is a mutual relationship between the two branches of law. Thus, it is

appropriate to argue that the domestic law and the international law are symbiotically related to

each other whereby each of the two benefits directly or indirectly from each other.

The above decision was affirmed in the case of Alabama where the United States was

awarded damages against the Great Britain for failure to abide by its obligations of being a

neutral state during the American Civil War (“Alabama Claims, 1862-1872” n.p). The

international court of justice insisted that the domestic law and the international law have no any

relationship whatsoever. This kind of evidence suggests that there is no relationship between the

two legal systems and that each law is independent of the other. The court further argued that

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW5

although it appeared as if the international law provision had acted over the domestic law, it is in

the real sense that the international law acted on the assumption of the domestic law by imposing

a penalty without considering the municipal law (“Alabama Claims, 1862-1872” n.p). The

decision clearly proves that a state cannot at any given time use provisions of its law to justify its

breach of international law. Thus, although both international and domestic laws are branches of

law, they belong to different subsections of the law. Noteworthy is that there is no way a country

can defend itself in a case involving a breach of international law using the provisions of its

domestic laws (Hall, 2013). This is to plainly mean that the international law does not recognize

any provisions of the domestic law.

Regarding the issue of enforceability if the laws, domestic law have more defined and

stricter systems of enforcement compared to the international law. Domestic law is closely

enforced by many state organs ranging from the constitution, the courts, and the enforcement

organs like the police (Hall, 2013). The international law, on the other hand, lacks clear

enforcement organs since there are no common institutions like the executive and the legislature.

Based on the enforcement, therefore, domestic law is easier to enforce than the international law.

To conclude, international and domestic laws have a definite symbiotic relationship in

whereby the two systems of law either work hand in hand or one is superior to the other in which

case, the international law always come first in considerations. Thus, it is necessary for

lawmakers, policy implementers, and the public to view these two branches as related contrary to

the public opinion, which views the systems as very different. Additionally, it is prudent to argue

that the nature of the relationship between the two sets of laws tends more towards monism than

to dualism. Monism is a bit realistic since it accepts the fact that there is a relationship between

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW6

the two systems of law even though it suggests that the international law is more superior to

domestic laws (Morina, 2011). The two branches of law are therefore related to each other and

can be used simultaneously to facilitate the process of justice delivery.

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW7

References

“Alabama Claims, 1862-1872” (n.d) GlobalSecurity.org . Retrieved from:

http://www.globalsecurity.org/military/ops/alabama-claims.htm

“Case of the Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (1932)”

(n.d)Worldcourts.com. Retrieved from:

http://www.worldcourts.com/pcij/eng/decisions/1931.08.06_savoy_gex_appendix_1_to_

1932.06.07_savoy_gex.htm

“Case concerning the Payment in Gold of Brazilian Federal Loans Contracted in France”

Worlcourts.com. Retrieved from:

http://www.worldcourts.com/pcij/eng/decisions/1929.07.12_payment2.htm

Hall, Thomas. (2013). “International Law vs Domestic Law”.Slayerment.com. Retrieved from:

http://www.slayerment.com/international-law-vs-domestic-law

Korchev, Georgi (2012) “The relationship between domestic and international law”.

Thestudentlaw.comRtrieved from: http://thestudentlawyer.com/2012/05/25/the-

relationship-between-domestic-and-international-law-part-1/#footnotes

Morina, V. ,Korenica, F and Doli, D. (2011) “The relationship between international law and

RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW8

national law in the case of Kosovo: A constitutional perspective”. International Journal

of Constitutional Law. Retrieved from: http://icon.oxfordjournals.org/content/9/1/274.full

Place new order. It's free, fast and safe

Paper type

Deadline

Page count

550 words

Total price: $ 15.00

Our customers say

Jeff Curtis

USA, Student

"I'm fully satisfied with the essay I've just received. When I read it, I felt like it was exactly what I wanted to say, but couldn’t find the necessary words. Thank you!"

Ian McGregor

UK, Student

"I don’t know what I would do without your assistance! With your help, I met my deadline just in time and the work was very professional. I will be back in several days with another assignment!"

Shannon Williams

Canada, Student

"It was the perfect experience! I enjoyed working with my writer, he delivered my work on time and followed all the guidelines about the referencing and contents."