Domestic laws can be defined as a set or system of rules in which a country recognises as it a regulatory function toward members of its society which may be enforced through the use of penalties. With the sole exceptions of the United Kingdom, Israel and New Zealand, most other countries base their domestic laws on a single, codified document guaranteeing the selected rights of its citizens and stating the laws of the land. An example of a codified constitution is that of the United States of America. The Unites States constitution is perhaps the most famous example of a codified constitution due to its rigidness, especially so in the face of thousands of deaths as a result of shootings across the country, and the governments constant hesitance in repealing or amending the Second Amendment Right To Bear Arms. Even with essentially worldwide condemnation of their hesitance to repeal or amend the second amendment, it is still holding up strong today. The international community has no say in the domestic laws of a government as that would be considered as undermining the sovereignty of a nation.
The United Kingdom on the other hand, do not have a single codified document. Instead, their “constitution” is based on a number of important documents that have been written throughout history. These documents include the Magna Carta of 1215, the Bill of Rights in 1689, the Human Rights Act of 1998 and the Crown Act of 2013 just to name a few. Domestic law is enacted by the 3 main branches of government, namely the legislative, the judiciary as well as the executive. In the United States, it is widely accepted that constitutional supremacy is the way to go, whereas in the United Kingdom, it is parliament that reigns supreme. The Human Rights Act of 1998 is a major form of international legislation that clearly defines the rights of each individual citizen in the United Kingdom, and is perhaps the most significant overlap of domestic and international law. Essentially, this means that if somebody in the UK feels as if their rights have been violated, they can instead go to the European courts to appeal their case.
International law is defined as a set of rules generally regarded as binding in terms of the relationships between nations. The main difference between international law and domestic law is the fact that international law is not usually so concerned with individual rights, but rather the relationship between nations. Where domestic laws govern the behaviour of individuals within the states, international law governs the behaviour of the states themselves. International law is formed through the uses of treaties, conventions, accords and agreements rather than relying on a single legislative body. Today however, there have been some expansion in international law to include rules that govern the rights of individuals as well. This is known as International Private Law. International private law usually deals with individual conflicts such as marriage and contracts disputes, where theres either a choice or conflict of jurisdiction. The rules governing the conduct of states falls under the purview of Public International Law. Supranational laws are regional international laws, and may deem national laws inapplicable if it goes against the treaty made by the supranational legal system.
International laws are formed through a number of ways. The first of which are international conventions, also known as treaties. This is essentially a written agreement between two or more countries regarding an accepted standard on any international issue of conflict. Being a party of a treaty usually means that states have the right to identify the what has been agreed upon and to whom obligations are owed to. Treaties between only two states are known as as bilateral, whereas a treaty between multiple nations are known as multilateral. Treaties which are widely accepted by most countries are called universal treaties.
Customs also dictate international law. Initially, customary international law is not written down in any way. Instead, what this means is that international law can sometimes be formed through the conduct and practices of countries. Customary laws are in constant development as conduct changes through time depending on a multitude of scenarios. In order to identify customary laws, there are a few factors to consider. The first is the consistency in which the practices have occurred, as well as how often is is practiced. The second is the generality of the practice in question and for what duration it has been practiced. The final factor when trying to consider whether or not a customs is international law is the interests in which the practicing parties who are specially affected have in that particular practice.
When domestic law conflicts with international law, it is important to know the two main theories which explain the relationship between these two laws. The first theory is monism. Monism sees international law and domestic law in the same field. Essentially, this means that international law applies directly towards domestic laws and vice versa. Although this theory doesn’t explain which law takes precedence when conflict arises, its main point is that international law is immediately enforceable within a nations domestic system.
The dualist theory states that international law and domestic law are two separate legal systems. Under dualism, international law has to first be incorporated into domestic law before they can be used to determine the rights and obligations of individuals. This stems from the fact that the sources of law deciding international laws and domestic laws are very different. The sources of domestic laws are determined by the states in which they are formed, whereas international law is formed upon agreements between nations.
Originally published 15.10.2019