International Law's Impact on National Legal Systems

International Law and National Legal Systems

The relationship between International Law and national legal systems is complex and dynamic. The lack of a solid institutional structure in International Law means that its application largely depends on the will of States. However, the growing importance of international cooperation and integration organizations has added new layers of complexity to this relationship, especially as these organizations take on functions that have traditionally been the responsibility of States.

Integration of International Law into National Legal Systems

The integration of International Law into national legal systems presents fundamental challenges. The need for specific acts of reception to incorporate international norms into national legal systems is debated, and the nature of these acts is examined. The consequences of the lack of adoption of International Law by national systems are also analyzed, as well as situations where national law conflicts with International Law.

• Reception: Analysis of the need for acts of reception for the integration of International Law.
• Adoption: Study of the problems arising from the lack of adoption of International Law.
• Conformity: Examination of cases where national law is not in conformity with International Law.

Theories on the Relationship between International and National Law

The doctrine has developed three main approaches to analyzing the relationship between International Law and national law: monism, dualism, and conciliatory doctrines. Each theory offers a different perspective on the interaction between these two legal systems:

1. Monism: Whose followers (Kelsen, among others) defend the unity of all legal systems, affirming that all norms derive their validity and force from higher norms until they reach the fundamental norm (grundnorm) either in domestic law or in International Law. In his early writings, Kelsen placed the grundnorm in domestic law and then transferred it to International Law, since he held that domestic law is nothing but a derivation of International Law. Consequently, International Law would maintain a hierarchy with respect to the internal rights of States.
   • Fundamental Norm: Grundnorm as the basis of validity for all norms.
   • International Law: Considered as the superior source of validity.
   • Domestic Laws: Derived from International Law according to this theory.
2. Dualist Doctrines: Of which Triepel is the greatest exponent, on the contrary, maintain the absolute separation between both systems, both in their sources and in their object, in such a way that for national systems to be bound by International Law, an express act of ratification or accession is required.
3. Conciliatory Doctrines: Seek a middle ground between monism and dualism. These theories emphasize the need to coordinate International Law with national rights, despite recognizing the unity of all normative systems. Their focus is on finding practical mechanisms to harmonize both systems, acknowledging both the interconnection and the differences between International Law and national legal systems.
   • Balance: Seeks a balance between legal systems.
   • Coordination: Promotes cooperation between legal systems.
   • Integration: Harmonizes International and national law.

International Law's Superiority Perspective

From the perspective of International Law, its superiority over national legal systems has always been maintained. This position is reflected at the conventional level, where the Vienna Convention, in its Article 27, establishes that a State cannot invoke its internal law to avoid fulfilling its international obligations. This principle has been ratified by international jurisprudence, reinforcing the idea of the primacy of International Law over national norms.

• Hierarchical Superiority: International Law is considered superior to national legal systems.
• Vienna Convention: Article 27 prohibits invoking domestic law to breach international obligations.
• International Jurisprudence: Ratifies the primacy of International Law.

Constitutional Models for Adopting International Law

In the application of International Law by the domestic organs of States, we can identify four distinct constitutional models: those that establish a mandatory but not automatic adoption, those that establish a mandatory and automatic adoption, those that, in addition, establish the superiority of the norms of International Law over domestic law, and those that enunciate general rules of International Law in an individualized manner.

1. Mandatory Non-Automatic Adoption: In this model, the incorporation of International Law into the domestic legal order requires a specific act, such as ratification or accession by the State. Example: Article 96 of the Spanish Constitution establishes that validly concluded international treaties shall be part of the domestic legal order once officially published. This means that the adoption of International Law in Spain is not automatic, but requires publication in the Official State Gazette.
2. Mandatory and Automatic Adoption: This model is characterized by the direct incorporation of International Law into the domestic legal order, without the need for additional acts. International norms are automatically integrated into the national legal system. Example: The Constitution of Austria (Art. 7) establishes that the norms of general International Law form part of the Austrian legal order without the need for an act of incorporation.
3. Superiority of International Law: This constitutional model explicitly establishes the primacy of International Law over domestic law, recognizing its hierarchical superiority. Example: Article 10 of the Basic Law of the Federal Republic of Germany establishes that the general rules of public international law are an integral part of German federal law and that laws that contradict international norms are not valid.

Individualized Enunciation of International Norms

Certain constitutions, such as that of the USSR in 1977, opted to incorporate general principles of International Law in an individualized manner. This approach involves the specific inclusion of international principles or norms within the constitutional text. In doing so, it grants explicit recognition to certain international norms within the national legal framework, facilitating their direct application and strengthening their status in the domestic legal order.

• Specificity: Detailed enunciation of international norms.
• Recognition: Explicit incorporation into the constitution.
• Applicability: Facilitates direct application in the national sphere.

Conventional Law in Constitutions: The French Case

At the level of conventional law, some constitutions, such as the French Constitution of 1958, establish the superiority of ratified conventional norms over national laws, under the principle of reciprocity. This moderate monist approach conditions the application of the international conventional norm on its publication in France. Once published, the international norm has hierarchy even over the previous French law, causing the norms contrary to the new conventional obligation to become inapplicable.

• Ratification: Approval of the international treaty.
• Publication: Official dissemination in France.
• Application: Superiority over national laws.

Dualist Model: The Italian Case

The Italian Constitution of 1947 adopts a complete dualist model for the incorporation of conventional law. This approach requires that the conventional norm be transformed into a national norm for its application. If the subject matter of the treaty is within the competence of the Italian Parliament, it is incorporated through a national law. If it is within the competence of the executive power, it is done through a decree. In both cases, the transformed treaty is integrated into the system of national normative hierarchy, derogating norms of equal rank.

• Transformation: Conversion of the international norm into a national one.
• Hierarchy: Integration into the Italian regulatory system.
• Derogation: Ability to derogate norms of equal rank.

International Wrongful Act: Concept and Evolution

An international wrongful act occurs when a subject of International Law violates a norm of the international legal order. This act has negative consequences for the subject to whom it is attributed. In recent years, the scope of subjects that can be held responsible for international wrongful acts has been expanded, including the concept of erga omnes obligations. This means that some wrongful acts not only affect a specific State, but also violate general obligations that all States have towards the international community.

• Unlawfulness: Acts that violate International Law.
• Expansion: Greater variety of responsible subjects.
• Erga Omnes: Obligations towards the international community as a whole.

Changes in the Structure of International Society

The international society has undergone profound changes in its structure and functioning. This includes the emergence of new subjects of International Law, such as international organizations, and the growing acceptance of the legal personality of the individual in International Law.

• New Subjects: Emergence of international organizations and individual legal personality.
• Technological Risks: New risks associated with technology and economic relations.
• Global Awareness: Recognition of serious unlawful behaviors in International Law.

2001 Project on International Responsibility

In the absence of an international convention that determines the international responsibility of States for wrongful acts, the General Codification Commission has been working on this matter since 1962. Its latest proposal, known as the 2001 Project, was approved by the General Assembly through resolution 56/83 of December 12, 2001. This project establishes in what cases a State has violated its international obligations and the legal consequences that this action or omission entails.

• Codification: Effort of the General Commission since 1962.
• 2001 Project: Proposal approved by the General Assembly in 2001.
• Scope: Establishes violations and consequences of international wrongful acts.

Concept of International Wrongful Act (2001 Project)

According to Article 2 of the 2001 Project, for there to be an international wrongful act, two circumstances must exist. First, that it be attributable to a State in accordance with International Law. Second, that it constitute a violation of an international obligation of the State. The determination of international responsibility for wrongful acts committed by a State is solely a matter of International Law, regardless of whether it is considered unlawful by the domestic legal systems of the States parties.

• Attribution: Act attributable to a State according to International Law.
• Violation: Breach of an international obligation.
• Jurisdiction: Determined exclusively by International Law.

Attribution of Wrongful Conduct to a State

The 2001 Draft considers as acts of the State the conduct of any power (executive, legislative, or judicial). The conduct of any organ placed at the disposal of a State by another State and acting within the scope of the authority conferred on it is also considered an act of the State. The 2001 Draft also considers as an act of the State the conduct of persons or groups acting under the instructions or control of a State.

• State Powers: Conduct of executive, legislative, or judicial branches.
• Borrowed Organs: Conduct of organs placed at a State's disposal by another State.
• Controlled Groups: Conduct of persons or groups acting under State instructions or control.

Special Cases of Attribution of Wrongful Acts

There are special cases in which a wrongful act is attributed to a State. For example, the conduct of an insurrectional movement that ultimately forms a new government, or situations where responsibility depends on collaboration between several States. The 2001 Draft Articles analyze three scenarios of collaboration: the State providing aid or assistance, the State directing and controlling another State in the commission of the act, and the State coercing another to commit a wrongful act.

• Insurrectional Movements: Attribution of responsibility when an insurrectional movement creates a new government.
• State Collaboration: States that aid, direct, or coerce others to commit wrongful acts.
• Shared Responsibility: Involvement of several States in a wrongful act, generating shared responsibility.

Peaceful Resolution of International Disputes

International relations are characterized by the constant presence of differences between the subjects of International Law. The main mission of International Law is the maintenance of peace, as TRUYOL points out. Disputes can be of a legal, political, or mixed nature, depending on the applicable resolution mechanisms. The means of dispute settlement are classified as peaceful and non-peaceful, with a variety of non-jurisdictional and jurisdictional mechanisms available to resolve conflicts between States and preserve international stability.

Non-Jurisdictional Means of Dispute Resolution

1. Diplomatic Negotiations: The most classic and widely used method, carried out by diplomatic personnel or itinerant diplomacy. It does not require special formalities, but some countries consider it the most respectful of State sovereignty. For example: The Treaty of Versailles was diplomatically negotiated between the victorious powers of the First World War.
2. Good Offices and Mediation: They involve the intervention of an impartial third party. In good offices, the third party does not offer solutions, while in mediation it does, although it is not binding on the parties. Example: Norway's mediation in the conflict between Israel and Palestine is an example of this mechanism.
3. Fact-Finding and Conciliation: Investigation is applied when there are differences over questions of fact. Conciliation involves a third party who proposes a non-binding solution after examining the facts and the applicable law. Example: The Truth and Reconciliation Commission of South Africa was an investigative process that helped to clarify the truth about the crimes of Apartheid.

The International Criminal Court

• Background: Since the 1950s, the United Nations has proposed the creation of a permanent international criminal tribunal.
• Objective: To determine the individual responsibility of those who commit serious international crimes.
• Challenges: Bipolarity in the international community hindered its creation for decades.
• Establishment: It was finally established as a permanent court to try serious international crimes.