Page 32 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 2
THE RELATIONSHIP BETWEEN
INTERNATIONAL AND STATE LAW

Section I. ON THE NATIONAL LEVEL
271. Dualism versus Monism. a. The relationship of in- which, and the degree to which, states have incorporated
ternational law to state (municipal) law, and particularly international norms into their domestic legal systems. In
the fact that state courts often apply international law, has that this varies from state to state, the relationship be-
long troubled adherents of analytical jurisprudence. tween international and state laws, at the state level, will
Moreover, the notion that only states, rather than in- also vary. 2 Conversely, international tribunals,
dividuals, are "subjects of international law" has been unrestricted by state laws, find it much easier to achieve a
distasteful to jurists who have sought the vindication and generally uniform application and interpretation of inter-
protection of human rights in international law. Ac- national law. Accordingly, it is essential that the military
cordingly, there have developed two principal "schools" attorney be fully aware of the legal relationship which ex-
or approaches seeking to explain, in terms of traditional ists between his state's system of jurisprudence and public
legal analysis, the relationship between international and international law. With this in mind, attention will be
state law: the dualist (or pluralist) and the monist. There focused on the currently existing relationship between
are several versions of both approaches. U.S. law and international norms.
(1) In simplest terms, the dualists regard interna- 2-2. The U.S. Approach. a. The U.S.Constitution
tional law and state law as entirely separate legal systems sets forth three sources of the supreme law of the land: the
which operate on different levels. They contend that inter- Constitution itself, legislation enacted by Congress in ac-
national law can be applied by state courts only when it has cordance with the Constitution, and all treaties constitu-
been "transformed" or "incorporated" into state law and tionally entered into by the United States. 3 As a result, it
emphasize the international legal personality of states would appear to be self-evident that all treaties, the pri-
rather than individuals or other entities. mary source of international law, of which the U.S. is a
(2) The monists, on the other hand, regard interna- party are an integral part of the American system of
tional and state law as parts of a single legal system and jurisprudence. Specifically, the U. S. Constitution, Article
' find it easier to maintain that individuals have interna- VI, Clause 2, provides:
tional legal personality. Ina prevalent version of monism, This constitution and the laws of the United States which shall be
state law is seen as ultimately deriving its validity from in- made in pursuance thereof, and all treaties made, or which shall be
ternational law, which stan& "higher" in a hierarchy of made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
legal norms. 1
any Thing in the Constitution or Lawsof any State to the Contrary not-
b. Any attempt to explain the relationship between in-
~thstanding.
ternational and state law on the basis of either the dualistic
or monist theory becomes somewhat theoretical and b. Given the validity of the preceding statements
generally proves to be highly unsatisfactory to the military regarding treaties, it is essential to examine the re~dts of a
attorney. First, there is no complete agreement as to the possible contradiction between American domestic legis-
definitive content of either theory. Secondly, the relation- lation and international agreements entered into by the
ship of these two jurisprudential formsis of immediate in- U.S. A conflict of this nature may, hfact, arise in either of
terest to the practicing attorney only when a conflict be- two ways. First, the agreement may be in conflict with a
tween a rule of international and state law occurs. ~nthis rule of domestic law already in effect at the time the inter-
situation, a decision must be made as to which particular national agreement becomes binding. Secondly, a rule of
rule to apply. Viewed in realistic terns, the nature of this d~mestic law may come into effect after the agreement
type of decision will generally depend upon whether the has become binding and be in coact with it. Where the
court the decision is a state tribunal or an inter- conflict is between an international agreement and an-
not found it difficult
national body, l-his result flows from the fact that state teri0r legislation, Courts have ~~lly
courts must render decisions, even on questions of inter- to resolve a conflict in favor of the ihternationd agree-
national law, in accordance with the laws of the countries ment; but in doing SO, courts usually do not take the posi-
~ court decisions on matters of
in which they sit. ~ hstate ~ , tion that the agreement is intrinsically superior to existing
international jurisprudence will reflect the manner in legislation. Instead, they treat it as equal in rank with the
1. See generally J. Starke, an Introduction to International Law 2. In national legal systems, constitutional provisions may provide
68-90 (6th ed. 1967); I. Brownlie, Principles of Public International Law a legal basis for the application by the courts of rules of customary inter-
29-31, 50-51 (1966); H. Kelsen, Principles of International Law national law. See N. Leech, C.Oliver and J. Sweeney, The International
551-588 (2d ed. 1966); P. Jessup, Transnational Law (1956); and LegalSystem 12 (1973). For purposes of discussion in this publication,
Ginsburg, The Validity of Treaties in the Municipal Law of the attention will be focused on the U.S. legal system.
"Socialist" States, 59 AM. J. INT'L L. 523 (1965). 3. U.S. CONST. art. VI, cl. 2.