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The relationship b/n IL and National law
One of the most important areas of IL for the practicing lawyer is
the question of its relationship with national law. It is generally true
that in IL 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 IL 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. In
this regard there are two theories.
Monism/t Theory
The monist theory supposes that international law and national
law are simply two components of a single body of knowledge
called 'law'. And they consider 'Law' 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 IL 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.
According to monist, IL is a basic norm of all laws, from which all law gains
its validity. IL derives from the practice of states and national law derives
from the state as established in IL. International law is, therefore, a 'higher'
legal order.
Dualism/t Theory
• In contrast to monist dualism denies that IL and national law operate
in the same sphere, although it does accept that they deal with the
same subject matter. For dualists, IL and national law are totally
separate legal system, as IL regulates the relations between states
whereas national law regulates the rights and obligations of
individuals within states.
IL deals with that subject matter on the international plane whereas
national law deals with the subject matter internally. Consequently, if
an individual is denied a right in a national court which is guaranteed
under IL, the national court will apply the national law. Likewise,
action by a state that might be unlawful under IL may nevertheless
attract validity and protection in national law if there is a clear rule of
national law to that effect. The state itself may be in breach of its
obligations on the international plane, but that is a matter for an
international court.
• In other words, dual legal systems operating simultaneously in
respect of the same rights and obligations and the national court
should not concern itself 'with the meaning of an international
instrument operating purely on the plane of international law.
• For dualist, IL cannot invalidate domestic law or vice versa and
rights and obligations arising under one system cannot
automatically be transferred to the other. According to the dualist
when the two system come into conflict as the they deal with the
same subject matter, each system applies its own law unless the
rules of that system says otherwise. National courts apply national
law, international courts apply IL.
• Theories on IL in the National legal System
Theory of incorporation : it states that rules of IL becomes parts
of NL without the need for express adoption by the local courts
or legislature. The rules of IL incorporated in NL simply because
it is a rule of IL. This automatic adoption is said to operate
unless there is some clear provision of national law. Thus, once it
is established that an IL rule exists and would be relevant to the
case at hand, under the theory of incorporation it is, without
more, part of the national law and may be applied by the national
court.
On the other hand, the theory of Transformation : stipulates that
rules of IL do not become part of NL until they have been
expressly adopted by the state. IL is not ipso facto part of NL.
Therefore, a national court cannot apply rules of IL until that
particular rule has been deliberately transformed into NL. In
approprate manner, as by legislation.

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IL and national law.pptx

  • 1. The relationship b/n IL and National law One of the most important areas of IL for the practicing lawyer is the question of its relationship with national law. It is generally true that in IL 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 IL 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. In this regard there are two theories.
  • 2. Monism/t Theory The monist theory supposes that international law and national law are simply two components of a single body of knowledge called 'law'. And they consider 'Law' 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 IL 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.
  • 3. According to monist, IL is a basic norm of all laws, from which all law gains its validity. IL derives from the practice of states and national law derives from the state as established in IL. International law is, therefore, a 'higher' legal order. Dualism/t Theory • In contrast to monist dualism denies that IL and national law operate in the same sphere, although it does accept that they deal with the same subject matter. For dualists, IL and national law are totally separate legal system, as IL regulates the relations between states whereas national law regulates the rights and obligations of individuals within states. IL deals with that subject matter on the international plane whereas national law deals with the subject matter internally. Consequently, if an individual is denied a right in a national court which is guaranteed under IL, the national court will apply the national law. Likewise, action by a state that might be unlawful under IL may nevertheless attract validity and protection in national law if there is a clear rule of national law to that effect. The state itself may be in breach of its obligations on the international plane, but that is a matter for an international court.
  • 4. • In other words, dual legal systems operating simultaneously in respect of the same rights and obligations and the national court should not concern itself 'with the meaning of an international instrument operating purely on the plane of international law. • For dualist, IL cannot invalidate domestic law or vice versa and rights and obligations arising under one system cannot automatically be transferred to the other. According to the dualist when the two system come into conflict as the they deal with the same subject matter, each system applies its own law unless the rules of that system says otherwise. National courts apply national law, international courts apply IL.
  • 5. • Theories on IL in the National legal System Theory of incorporation : it states that rules of IL becomes parts of NL without the need for express adoption by the local courts or legislature. The rules of IL incorporated in NL simply because it is a rule of IL. This automatic adoption is said to operate unless there is some clear provision of national law. Thus, once it is established that an IL rule exists and would be relevant to the case at hand, under the theory of incorporation it is, without more, part of the national law and may be applied by the national court. On the other hand, the theory of Transformation : stipulates that rules of IL do not become part of NL until they have been expressly adopted by the state. IL is not ipso facto part of NL. Therefore, a national court cannot apply rules of IL until that particular rule has been deliberately transformed into NL. In approprate manner, as by legislation.