Posted by Howard S. Schiffman on February 08, 2001 at 02:34:12:
In Reply to: International vs. national law posted by Uldis Blukis on February 07, 2001 at 10:39:44:
Dear Uldis Blukis,
The relationship between international law and national law (municipal law or domestic law as it is also called) is one of the most intriguing, variable, and I dare say complex, issues that arises in the context of the application of international law. Your question is rather general and without knowing the specific parameters of what you seek, I can only offer a few general points in response.
First, international legal obligations can be thought of as existing on two simulataneous planes: the international plane and the domestic plane. They are not necessarily the same and in many cases are quite different. Obligations that exist on the international plane are those between states themselves. States, of course, being the central actors in international law. These obligations arise as a result of treaties and customs that evolve over time.
These obligations, however, may produce different consequences when they are considered on the domestic plane. Here countries differ greatly with regard to the hierarchy or normative rank that their individual legal systems assign to international obligations. Typically, states will draw distinctions between obligations arising under treaty and those arising through customary law. Rarely, states consider international obligations superior to their domestic laws (as in the case of Germany) but in many more cases international obligations are considered on a par with, and part of, a state's body of domestic law. In other cases, international obligations are made a part of a state's domestic law by specific implementing legislation that converts an international obligation into a corresponding domestic one. Where this fails to occur, the state will be bound by the obligation on the international plane, but no rights flow from that obligation to the domestic plane.
In the United States, treaties are considered to have the dignity of an act of Congress, that is federal statutory law, while customary law has the rank of federal common law (judge-made law). Note they are both considered inferior to obligations of a Constitutional magnitude. The question of whether or not a treaty to which the US is a party requires implementing legislation to create rights under domestic law is a much more involved question that cannot be addressed adequately here on the Forum. The ongoing scholarly debate over 'self-executing' treaty obligations addresses this very point.
Since your question asked for sources, I am happy to provide a few:
International Law and Municipal Law (Tunkin & Wolfrum, eds. 1988);
The Effect of Treaties in Domestic Law (Jacobs and Roberts, eds. 1987);
Louis Henkin, "International Law as Law in the United States," 82 Mich.L.Rev. 1555 (1984);
Wildhaber & Breitenmoser, The Relationship Between Customary International Law and Municipal Law in Western European Countries (1988);
For an early source, see Borchard, the Relation Between International Law and Municipal Law, 27 Virginia Law Review 137 (1940).
If you find other useful sources please tell us about them. I hope this helps.
Howard S. Schiffman, Esq.
Co-Founder and Administrator
InternationalLawHelp.com