Hey, E.

Nollkaemper, A.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)The relationship between international law and national lawNollkaemper, A.; Hey, E.Publication date2001Document VersionFinal published versionPublished inInternational Law FORUM du droit internationalLink to publicationCitation for published version (APA):Nollkaemper, A., & Hey, E. (2001). The relationship between international law and nationallaw. International Law FORUM du droit international, 1, 9-11.General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:25 Jul 20229Recurring Themes / Thèmes récurrentsIntroduction Theme I: The relationship between internationallaw and national lawANDRÉ NOLLKAEMPER* & ELLEN HEYIn a world where it is becoming increasingly difficult to distinguish between whatis national and what is international, the relationship between international lawand national law merits revisiting. The topic is one of the traditional subjects ofinternational legal discourse, a status reflected in the fact that it is the standardsubject of one of the first chapters of any text book on public international law.Text book treatment of the topic has changed little over the years, suggesting aserene continuity. Standard treatment focuses on the theoretical foundations ofmonism and dualism and the limited power of these two concepts in explainingpractice. Thereafter, a pragmatic and anti-theoretical approach dominates.Yet, for all its ‘text book continuity’, the topic is one of change as internationaland national law are increasingly becoming more intimately related. Partly becauseof the topics that they cover, but partly also because of the recognition that the keyto their effectiveness is in the national sphere, treaties rely heavily on national lawfor their implementation. National judicial decisions also indicate an intensificationin the relationship between international and national law. There is much evidencethat international law and national law, as with international and national aspectsof life, are increasingly becoming more entangled.The development outlined above raises a number of questions. Is the apparententanglement of international and national law a development in quantitative termsonly – reflecting the fact that there is simply more international law and that therethus are also more contacts between international law and national law – or are wealso witnessing a qualitative change in the relationship between international lawand national law? Is any change, either qualitative or quantitative, truly international,or is it confined to a limited number of western states? And, to the extent that thereis a change in quality, is it desirable? A further relevant question in this context is,for instance, whether international law, given current decision making proceduresat the international level, has sufficient legitimacy to control the content of nationallaw and the substance of national judicial decisions. More theoretical questionsalso emerge. Is the traditional treatment of the topic still valid for an understanding*  Guest editor for this topic. Professor of Public International Law and Director of theAmsterdam Center for International Law, University of Amsterdam, The Netherlands.International Law FORUM du droit international 3: 9–11, 2001.©2001 Kluwer Law International. Printed in the Netherlands.10of the actual relationship between international law and national law? And if not,what new theoretical conceptions may enlighten our understanding? Finally,instrumental questions arise. Assuming that it is desirable that international lawincreasingly rely on national law for its implementation, should steps be taken toincrease the ability of national legal systems to digest international law and therebythe effectiveness of international law? And, if such steps are found to be desirable,should they be taken in the sphere of constitutional law, law-making, in the courtsor within various spheres at the same time?The above sets out only a few of the very many questions that arise in revisitingthe relationship between international law and national law. However, as is sooften the case, it is much easier to pose the questions then to produce the answers.We left the latter difficult task to the four contributors to the present ‘recurrentthemes’ column. We asked each of the experts to share with us their views on therelationship between international and national law, in general, and to highlightproblematic aspects of this relationship, in particular. One point that definitelyemerges from the contributions is that the serene continuity, suggested in standardpublic international law text books, merits revision. The object of such a revisionshould above all be to reflect the dynamic character of the topic.A fundamental perspective on the evolution of the relationship betweeninternational law and national law is taken by Phillip Allott. Continuing a line setforth in his previous writings on the topic, Allott criticizes the long dominant ideathat there are two separate ‘mind-worlds’, the highly socialized and regulated nationalsphere and the primitive international sphere. He finds that the beginning of thiscentury provides evidence of a fundamental end to this separation of mind-worlds:we are witnessing an evaporation of the national-international frontier and a de-nationalizing of the national legal systems. The emerging body of law constitutesinternational constitutional law, a fundamental new development. In the wake ofthis finding, Allot emphasizes, further questions arise – most significantly questionsof legitimacy and accountability: given the de-nationalizing of national legal systems,how can the people keep or attain control over developments in the internationalpublic realm that will affect them directly?Benedetto Conforti takes a no less fundamental approach. Departing from theassumption that international law relies primarily for its effectiveness on imple-mentation by national organs, he presents the view that international law andnational law should be treated on the same footing in the national legal order.This, he argues, is essential if the progress made during the last fifty years indeveloping the content of international law is to be mirrored by progress in theimplementation of international law. Conforti subsequently analyses to what extentnational organs are persuaded, and should be persuaded, to ensure that internationalRecurring Themes / Thèmes récurrents11law is complied with within the national legal order.More instrumental aspects are covered in the contribution by Gilbert Guillaume.He reviews the work of the International Law Association (ILA) on the role ofinternational law in the practice of national courts. The ILA considered how nationalcourts find and apply rules of international law in domestic proceedings and offereda number of suggestions on how the implementation of international law by nationalcourts might be enhanced. These suggestions included giving a more prominentplace to international law in the law school curriculum.A slightly different focus is taken by Laura Picchio Forlati, who examines therole of cultural values in private international law. Her contribution illustrates howthe international harmonization of private law, and thus the increased entanglementbetween the national and international, may diminish the role accorded to culturaldivergence, often enshrined in national law. It is in this respect that there may belessons to be learned from private international law when public internationallawyers engage in efforts to revisit the relationship between public internationallaw and national law. The questions regarding legitimacy and accountability, raisedby Allot, are of paramount importance in this context.While the contributions recognize that in practice international law and nationallaw have become more entangled, and acknowledge that international law reliesfor its effectiveness on national legal systems, one broad question remainsunanswered: where do we go from here, or put otherwise, how to progress?Two dimensions to this all important but difficult question need to bedistinguished.First there is the more theoretical dimension. Given that national law is sointernationalized, should anything be changed in the procedures for the making ofinternational law? Should international law be subjected to comparable proceduresof law-making to those which now govern national law? Should we develop moresafety valves that allow states to protect their own (cultural) values? Or should wechange our understanding of the legitimacy of the law and develop new methodsof law-making?Second, there is a more instrumental dimension. If it is true that internationallaw relies for its effective implementation on national organs, and at the same timewe witness, as Conforti illustrates, a gap between the normative requirements ofinternational law and the actions of national organs, what is to be done to closethat gap? Should we rely on the evoution that brought us to were we are now? Oris there a case for a true legal project, for instance in the Instituut de DroitInternational, the ILA or the International Law Commission to enhance the positionof international law in the national legal order? And if so, what should be thecontent and the envisaged end-result of such a project?André Nollkaemper & Ellen Hey

The relationship between international law and national law

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The relationship between international law and national law

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