The Difference between International Law and National Law

1. The Difference between International Law and National Law

2. So, literally, “international law” is defined as “law between nations (States),” which stem from agreements, embodied in a

The definition of international law centers
on the word “inter,” which means
“between,” as opposed to “intra,” which
means “within.”
So, literally, “international law” is defined as
“law between nations (States),” which stem
from agreements, embodied in a treaty, or
customs that is recognized by all nations.

3. National law, which is often referred to as domestic law, are those laws that exist “within” a particular nation (State).

4. Structure

1. (Traditional) theories
2. International law’s perspective on
national law
3. National law’s perspective on
international law

5. Theories

Dualism and monism
• Capture some, but not all of multifaceted relationship
between domestic and international law today
Dualism
• international and domestic legal order exist as two
separated, distinct sets of legal orders
• Differences in: subjects, sources, content
• Requires ‘transformation’ of int. law into domestic law to
make int. law binding on domestic authorities (incorporation)
• States decide on modes of incorporation (how)
• National law has priority over int. law that has not been
incorporated

6. Theories

Monism (Kelsen)
Nat. law and int. law as one unitary,
coherent system
Int. law at top of pyramid, (in)validating
acts of domestic legal systems
In case of conflict, int. law prevails • No
need for ‘transformation’ of int. law into
domestic law
No strict distinction between subjects of
nat. and int. law; role of individuals

7. Monism Dualism

international law above
domestic law, controlling
domestic legal systems
ultimately, national (state)
interests can overrule
international law
• open to the view that
international values can
override domestic values
• emphasises role of states as
most important subjects of
international law; international
law protecting state’s interests
• more likely to see
international law as legal
system that ultimately aims to
protect interests of all
individuals
• some distrust towards states
• international law first and
foremost founded upon state
consent

8. According to Article 38 of the Statute of the International Court of Justice, sources of international law, in order of

According to Article 38 of the Statute of the
International Court of Justice, sources of
international law, in order of precedence, are:
.
(a) international conventions (treaties);
(b) international custom, as evidence of a
general practice accepted as law;
(c) the general principles of law recognized by
civilized nations;
(d) judicial decision and the teachings of the
most highly qualified publicists of the various
nations.

9. Monism (Kelsen) • Nat. law and int. law as one unitary, coherent system • Int. law at top of pyramid, (in)validating acts of

domestic legal
systems
• In case of conflict, int. law prevails
No need for ‘transformation’ of int.
law into domestic law
• No strict distinction between
subjects of nat. and int. law; role of
individuals

10. Special international social relations governed by international law

11. The subject of international law

Special
international
social relations
governed by
international
law

12.

13.

14.

15.

16.

17.

18. Sources of International Law

19. International agreements

20.

International customs

21.

22. Some resolutions of international organizations

23. General principles of law

24. Decisions of international courts

25.

26. Unilateral statements by States