Week 1 – The Nature and Structure of International Law
Differences between International Law and National Law
International National
States can decide to give Citizens must obey the
their consent to a treaty rules, regardless of
whether the citizens have
given consent
There is not a separation There is a separation of
of powers powers (legislative,
executive, judiciary)
Fragmented: separate Structured in its legal
legal norms order
Horizontal effect: between Vertical effect: between
states that are equal to states and citizens
each other
Monism and Dualism
How does international law enter the legal order?
Monist State: international law applies directly in national legal orders (=
incorporation)
Dualist State: international law needs to be transposed into national law
before it can be applied domestically (= transformation)
What is the hierarchy between international and domestic law?
Monist State: if there is a conflict, international law prevails
- There is a single and coherent legal order, in which international law has
direct effect in domestic law once the State has given its consent
Dualist State: if there is a conflict, international law may be set aside
- There are two separate legal systems that operate independently, and in
which international law won’t have a direct effect in domestic law once the
State has given its consent
The State decides for itself whether it is a monist or a dualist state based on its
legal order ( usually the constitution)
Some States may not be explicitly one or the other, but a combination (=
pluralism)
The relationship between International law and National law
1. Validity (applicability) of international law in domestic legal order
2. Direct effect (invocability) of international law in domestic legal order
3. Primacy (supremacy) of international law over conflicting domestic law in
domestic legal order
NB: Issues all regulated by domestic (constitutional) law
, The Netherlands
Validity
All international law is valid or applicable in domestic legal order
Domestic law must be applied in conformity with all international legal
obligations of the Netherlands
Cannot lead to contra legem interpretation of domestic law the Dutch
provision would be applied in such a way that it would directly contradict the
ordinary meaning of the provision
- Based on principle of Dutch constitutional law
Direct effect
Only provisions of treaties and of decisions by international organizations
which are binding on all persons by virtue of their contents can be invoked
directly
- Article 93, Dutch Constitution
Primacy
Dutch law is not applicable if such application is in conflict with provisions of
treaties or of decisions by international organizations that are binding on all
persons
- Article 94, Dutch constitution
Differences between International Law and National Law
International National
States can decide to give Citizens must obey the
their consent to a treaty rules, regardless of
whether the citizens have
given consent
There is not a separation There is a separation of
of powers powers (legislative,
executive, judiciary)
Fragmented: separate Structured in its legal
legal norms order
Horizontal effect: between Vertical effect: between
states that are equal to states and citizens
each other
Monism and Dualism
How does international law enter the legal order?
Monist State: international law applies directly in national legal orders (=
incorporation)
Dualist State: international law needs to be transposed into national law
before it can be applied domestically (= transformation)
What is the hierarchy between international and domestic law?
Monist State: if there is a conflict, international law prevails
- There is a single and coherent legal order, in which international law has
direct effect in domestic law once the State has given its consent
Dualist State: if there is a conflict, international law may be set aside
- There are two separate legal systems that operate independently, and in
which international law won’t have a direct effect in domestic law once the
State has given its consent
The State decides for itself whether it is a monist or a dualist state based on its
legal order ( usually the constitution)
Some States may not be explicitly one or the other, but a combination (=
pluralism)
The relationship between International law and National law
1. Validity (applicability) of international law in domestic legal order
2. Direct effect (invocability) of international law in domestic legal order
3. Primacy (supremacy) of international law over conflicting domestic law in
domestic legal order
NB: Issues all regulated by domestic (constitutional) law
, The Netherlands
Validity
All international law is valid or applicable in domestic legal order
Domestic law must be applied in conformity with all international legal
obligations of the Netherlands
Cannot lead to contra legem interpretation of domestic law the Dutch
provision would be applied in such a way that it would directly contradict the
ordinary meaning of the provision
- Based on principle of Dutch constitutional law
Direct effect
Only provisions of treaties and of decisions by international organizations
which are binding on all persons by virtue of their contents can be invoked
directly
- Article 93, Dutch Constitution
Primacy
Dutch law is not applicable if such application is in conflict with provisions of
treaties or of decisions by international organizations that are binding on all
persons
- Article 94, Dutch constitution
