What is the difference between international law and domestic law

Even before the Law of the Sea was codified, states observed the rights of weaker states with regards to their territorial waters and adhered to maritime sovereignty more generally as part of their relations with each other.

It is impossible for states to perpetrate grave violations and escape the consequences of international law. The consequences can manifest themselves in several ways, through severance of friendly relations, loss of prestige, credit and other interests of the sanctioned state.

There are also avenues for criminal prosecution. It is very clear that these consequences encourage states to regulate their behavior. Another difference between the Sharia Law and the U.

S Constitution is in the strange way the admission and use of evidence is handled during the court proceedings. For instance, under the US justice system both oral and written evidence are admitted, while Sharia Law seems to allow only the use of oral evidence. Their reasoning for preference of use of oral evidence over other types of evidence is that the other evidence can possibly be forged or tampered with by interested parties. This seems to be a ridiculously made argument, in the case of rape, written evidence including expert opinion is required for an impartial judgment to be made given, this would seem to be a time when written evidence would be needed the most.

In fact, the US law. At the most basic level the difference between international law and domestic law is clear; international law concerns itself with those rules and regulations governing the relationships between states, and to a lesser extent, between individuals from foreign states, whereas domestic law primarily deals with internal affairs. While this definition mentions individuals, it must be noted that it has been quite limited to date in this regard; international law has traditionally focused primarily on states Lee, When trying to identify the relationship between domestic and international law, there are two schools of thought that prevail: dualism and monism.

Distilling this further, we ask in each system if there were a conflict. Show More. Essay On Monism Vs Dualism Words 5 Pages An issue in theoretical basis on what should prevail or which is supreme between International Law or Municipal Law national law is usually presented as a competition between monism and dualist.

Read More. If Domestic Law governs the behaviour of individuals within a state, International Law governs the behaviour and conduct of states. International Law serves as the fundamental structure within which states and other international actors conduct their international relations. The key feature of International Law is that it is a body of law that is recognised and accepted by nations as binding on their relations with other nations.

Unlike Domestic Law, it is not enacted by a legislative body. Instead, International Law is composed of treaties , agreements , conventions, accords, protocols , judicial decisions, and customs. Among these, treaties and conventions constitute the primary components of International Law that govern relations between nations and other international actors.

In contrast to Domestic Law, the enforcement of International Law is generally based on the consent and acceptance of states.

Thus, a nation can choose not to accept and comply with the rules of a convention or treaty. Besides being complex theoretically, and at many times exhausting, the relationship between international law and national law can be examined through looking at a particular and narrowly-viewed case; in particular the relationship can be more easily analyzed when looking at a specific legal order.

Many constitutions contain norms that regulate the position of international law in the domestic legal order. However, although the Kosovo Constitution admits the precedence of international law, it does not accord it such a highly privileged position as some may allege.

This paper therefore aims to discuss theoretical approaches to the relationship between international law and national law from the constitutional perspective of Kosovo. To answer the research question, the paper reviews some of the prevailing theoretical contributions in the field, and applies their substance to the Kosovo Constitution.

Most particularly, the paper aims to respond to the question of: 1 the relationship between binding international treaties and Kosovo's domestic legal order; 2 the relationship between customary international law and Kosovo's domestic legal order; and 3 the relationship between international law and domestic law in the human rights sphere.

Despite the idea that a constitution is the perfect reflection of the state's sovereignty over its subjects, the drafters of the Kosovo Constitution found themselves in rather unique circumstances when compared to other countries in Eastern Europe following the breakup of communism, and were rather cautious in their approach to demarcating the legal boundaries between national law on the one hand, and the norms of international law on the other.

Firstly, looking back in retrospect, since Kosovo was placed under the United Nation's Administration in June , there was openness on the side of the UN Administration in Kosovo toward international human rights law during the course of the legal regulatory functions of the UN Mission, exercised under the SC Resolution Even though no clear parameters were applicable during the UN Administration in Kosovo with respect to the relationship between domestic law on the one hand and intentional law on the other, both local and international framers appeared to have cultivated a legal culture of borrowing accepted international standards reflected in international human rights instruments when composing statutory provisions in post-status Kosovo, making international law an instrument of direct reference for the purposes of statutory regulation.

Secondly, the process of constitution drafting was, by and large, carried out under extensive international supervision. The international community's supervisory role was to ensure that the proposed draft provided sufficient legal and institutional guarantees for the minority communities present in Kosovo and to make sure that the draft constitution reflected the framework of principles contained in the Comprehensive Proposal for Kosovo Status Settlement.

Work on drafting the constitution was carried out by just 21 members of the Kosovo Constitutional Commission, but since the inception phase there was the extensive involvement and supervision of internationally accredited missions in Kosovo as well as international constitutional experts, whose role was not only to provide legal assistance during the drafting process but to also ensure that the draft constitution conformed to the so-called values of European constitutional heritage, and to ensure that the draft remained within the ambit of the Ahtisaarian Comprehensive Proposal.

The fourth feature that should be mentioned in this regard is the protection of human rights and the role of the European Convention on Human Rights ECHR , which serves as the principal human rights document demarcating the scope of rights and freedoms in the Constitution.

The important role that the ECHR has played in the drafting of the human rights provisions contained in the text of the Kosovo Constitution is evident.

The finest example insofar as the protection of minority communities is concerned is contained in Chapter III of the Constitution [community rights], which provides additional human rights protection to members of communities living in Kosovo, in addition to fundamental rights guaranteed under Chapter II of the Constitution.

Acting upon the expressive stipulation of the Comprehensive Proposal [which provides that Kosovo shall respect the standards set out in the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages], the framers followed an exactly identical formulation as contained in Article 2 of the Comprehensive Proposal, and inserting ad verbatim into the text of the Constitution 58 para. Moreover, the process of constitution drafting in Kosovo was also directly impacted by the Ahtisaarian Comprehensive Proposal, which basically stamped the overall constitutional formatting of post-status Kosovo and served as the guiding document in delineating the borders of the relationship between international law and domestic law in the Constitution.

Aside from a broad theoretical discussion, the relationship between international and national law delivers very practical consequences in a given legal order.

Furthermore, to some extent, the prevailing of one over the other could give rise, in practice, to very unfavorable legal circumstances. Hence, many times, international law and national law have varying determinations, and, in the majority of cases, the former is considered to be more modern with respect to human rights and issues of freedoms. Evidence shows that the primacy of international law over domestic law is a modern phenomenon, and is often regarded to as a benchmark of a democratic state.

By contrast with the pre-World War II situation, momentum toward accepting the primacy of international law is becoming more and more evident. There are two main concerns that a constitution-maker faces. The first is whether international law norms should be incorporated in the domestic legal order, and the second is whether the incorporated treaty should prevail over laws or the constitution itself.

Nevertheless, the two theories do not explain the whole of the problem, but largely lay down the outline within which the question can be solved. The monist model, 11 on the one hand, considers there to be just one legal order, and thus international and national law are part of a single legal order. That being said, international law is directly incorporated into domestic law once it becomes binding. By contrast with the monist theory, the dualist theory regards international law and national law as two different legal orders, situated horizontally, each competing with the other.

Although the monist and dualist models explain much of the relationship between international and national law, they cannot explain the practical problem in greater detail. The same situation, in our view, appears in the Kosovo Constitution, since the set of provisions that regulate the relationship in question provide for a substantially distinctive rapport between international law and the Kosovo legal order.

As a result, one would, at least logically, seek to locate Kosovo's constitutional order within one of the above models, while acknowledging the distinctiveness of the former. On the other hand, as Eric Stein acknowledges, most Eastern European countries have accepted the doctrine of incorporation of treaties into the domestic legal order, 20 which suggests that the post-communist European countries have followed a logic that accepts the monist model.

Kosovo is thus thought to have followed the same line. This chapter, however, aims to analyze the relationship between internationally binding agreements treaties and the Kosovo domestic legal order. As such, it is worth noting that international treaties can be part of a monist legal order—such as that of Kosovo—yet their direct applicability and effect are not to be automatically assumed.

Hence, particular concern should be paid to the latter question, as the manner in which the treaty becomes applicable is of great importance. Internationally binding treaties, as opposed to rules of customary international law, become effective after state authorities approve their legal power. The engagement of the parliament Assembly in treaty ratification—within the abovementioned fields—makes the treaty-making process more legitimate domestically in issues of great importance.

Overall, it can be asserted that internationally binding agreements, from a Kosovo constitutional perspective, are made binding due to an interaction between the President of the Republic and the Assembly, or simply the President of the Republic. To look more closely at the question of this chapter, it is necessary to scrutinize what exactly is prescribed by the Constitution of Kosovo in terms of the relationship between treaties and national law.

Article As such, Article They are directly applied except for cases when they are not self-applicable and the application requires the promulgation of a law. As for the first question, the above provision institutes a monist system of relationship between international and domestic law. That being said, once a treaty becomes ratified and effective, it ex proprio vigore becomes part of national law. In order to become binding, however, it must be published in the Official Gazette.

Hence, there is almost nothing that can be used to counter-argue the monist model of relationship between treaties and national law; however, the position of treaties in the Kosovo legal order is still to be explored.

On the other hand, given that ratified treaties become part of the internal legal order, it can be argued that the Constitution of Kosovo has endorsed the doctrine of incorporation.

Besides establishing a monist system of relationship between binding treaties and domestic law, Article Being directly applicable means that the ratified treaty does not need any further law to be enacted for it to be legally effective, and thus institutions are obliged to enforce it directly. If a treaty is not self-applicable, it needs to be concretized through a domestic legal act, for example a law, 30 and it can be observed that the Constitution of Kosovo distinguishes between self-applicable and non-self-applicable treaties.

This, in our opinion, might lead to a faulty order, as if the treaty is not self-applicable, an individual cannot directly rely on the rights and duties prescribed therein 31 until the time the national legislature adopts a law. This, of course, results in legal uncertainty and allows domestic institutions to exercise their discretion when qualifying a treaty as self-applicable or not, 34 which altogether misbalances the principles of self-applicability and might lead to poorer protection of international norms in the domestic context.

Thus, the constitutional provision in question—given that it makes a distinction between self-applicability and non-self-applicability—may be considered as defective in view of the direct applicability of treaties, and might altogether lead to legal uncertainty. Having analyzed the abovementioned provision, and in light of this analysis, it can be argued that the Constitution of Kosovo embraces a monist model of relationship between international treaties and domestic law, with the establishment of the doctrine of incorporation, while allowing internationally binding agreements to be directly applicable.

Though treaties form part of national law, and though they are directly applicable, the position taken by the norms of binding treaties in the domestic legal order may be questioned. The Constitution of Kosovo, as a result, provides an answer as to what position treaties have in Kosovo's domestic legal order. Being subject to the Constitution of Kosovo—though prevailing over national laws—treaties cannot thus lead to a pure monist system.

Primacy over national laws, and automatic incorporation upon ratification in the domestic legal order make treaties part of a single legal order, together with national law however. The primacy of the Constitution of Kosovo over ratified treaties is unquestionably linked with Article Laws and other legal acts shall be in accordance with this Constitution. Furthermore, one can argue that, although a ratified treaty will be directly incorporated in national law, it should be domestically constitutional; otherwise, its incorporation should be contested or barred.

Besides regulating the position of ratified treaties, the Constitution of Kosovo features a further provision regarding international treaties.