CLASS 1 – THE NATURE AND STRUCTURE OF INTERNATIONAL LAW
Overview Literature:
- Hendriksen, Chapter 1
Learning objectives: At the end of this class, students:
- Understand the history of the development of international law;
- Understand the structure and nature of international law
- Are able to explain in what respects international law is different from national
law;
- Understand the difference between monist and a dualist systems.
, Notes
Public international law: rules which govern the relations between sovereign
states inter-state relationships
Private international law: governs the relations between persons of different
nationalities trans-national private relationships
Coexistence: living together without any conflicts, respecting boundaries
Cooperation: working together to grow
Using force?
Sovereignty: entitlement to decide upon its own international affairs (external)
and do with its subjects what it wants to do (internal)
International courts:
International court of justice, international criminal court, European court office,
international tribunal of …, human rights court (Strasbourg)
- What are the problems that each of these approaches faces?
Monist: as an international law is automatically integrated into the domestic legal
system, there may be inconsistencies with the national law. The country doesn’t
agree with the international law, but it has no choice but to accept it.
Dualist: an international law has to be translated into the domestic legal system
first. This means the national law has to be changed. The international law moves
to the background and isn’t as important.
- Who decides if a State is dualist or monist?
Each State can decide for itself whether it is a dualist or a monist state. (Law
makers)
Differences between IL and national law:
- Separation of powers
Indirect representation in national law
- Horizontal vs. vertical relationship between the actors
- Enforcement mechanism
- No overarching authority
International law is decentralised and fragmented
Incorporation of international law into domestic law
Monist model: international law applies directly in national legal order
Dualist model: international law needs to be transposed into national law
before it can be applied domestically
The hierarchy between domestic law and international law
Monist mode: if there is conflict, international law prevails
Dualist model: if there is conflict, international law may be set aside
Monism & dualism
Who decides whether a state follows the dualist or the monist model?
- The state decides for itself based on its secondary norms, usually the
constitution
- Most systems are a combination between monism and dualism
What are the problems of each approach?
Overview Literature:
- Hendriksen, Chapter 1
Learning objectives: At the end of this class, students:
- Understand the history of the development of international law;
- Understand the structure and nature of international law
- Are able to explain in what respects international law is different from national
law;
- Understand the difference between monist and a dualist systems.
, Notes
Public international law: rules which govern the relations between sovereign
states inter-state relationships
Private international law: governs the relations between persons of different
nationalities trans-national private relationships
Coexistence: living together without any conflicts, respecting boundaries
Cooperation: working together to grow
Using force?
Sovereignty: entitlement to decide upon its own international affairs (external)
and do with its subjects what it wants to do (internal)
International courts:
International court of justice, international criminal court, European court office,
international tribunal of …, human rights court (Strasbourg)
- What are the problems that each of these approaches faces?
Monist: as an international law is automatically integrated into the domestic legal
system, there may be inconsistencies with the national law. The country doesn’t
agree with the international law, but it has no choice but to accept it.
Dualist: an international law has to be translated into the domestic legal system
first. This means the national law has to be changed. The international law moves
to the background and isn’t as important.
- Who decides if a State is dualist or monist?
Each State can decide for itself whether it is a dualist or a monist state. (Law
makers)
Differences between IL and national law:
- Separation of powers
Indirect representation in national law
- Horizontal vs. vertical relationship between the actors
- Enforcement mechanism
- No overarching authority
International law is decentralised and fragmented
Incorporation of international law into domestic law
Monist model: international law applies directly in national legal order
Dualist model: international law needs to be transposed into national law
before it can be applied domestically
The hierarchy between domestic law and international law
Monist mode: if there is conflict, international law prevails
Dualist model: if there is conflict, international law may be set aside
Monism & dualism
Who decides whether a state follows the dualist or the monist model?
- The state decides for itself based on its secondary norms, usually the
constitution
- Most systems are a combination between monism and dualism
What are the problems of each approach?
