Question

You overhear someone say, “International law does not exist.” What do they mean? What arguments can you make to persuade them that international law does exist and to explain to them how it comes into existence?   (30 points)

Answer 1

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

"International law as such can confer no rights cognisable in the municipal courts. It is only in so far as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".[3]

The supremacy of international law is a rule in dualist systems as it is in monist systems. Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its repeated affirmation of:

the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.

If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.

International law is the term given to the rules which govern relations between states.

Despite the absence of any superior authority to enforce such rules, international law is considered by states as binding upon them, and it is this fact which gives these rules the status of law. So, for example, where a state wishes to avoid a particular rule, it will not argue that international law does not exist, but merely that states have not agreed that such a rule is to be binding upon them, or that the rule does not apply to the particular circumstances.

Unlike national or domestic law, international law is not set down in any legislation approved by a parliament. Even multilateral treaties do not apply to all states, but only to those which have consented to be so bound, by signing and ratifying or acceding to them. As a result, the precise rules of international law are often more difficult to identify than national laws, and may be found in a variety of sources.