The Intersection of International Law and Domestic Law

The Intersection of International Law and Domestic Law

A Theoretical and Practical Analysis

Davíd T. Björgvinsson

What are the theoretical and practical issues relating to the intersection between domestic and international law? This important new book discusses how general theories, including monism and dualism, transpire in practice. The author examines several key areas: the rules relating to treaty making and the ratification of treatises, the doctrine of automatic incorporation and transformation, the direct effect of international norms in the domestic system, and a discussion of the principle of consistent interpretation. With a focus on the European Convention on Human Rights, the author concludes that, although traditional theories are still relevant, they fall short in grasping the complexity of the different ways in which the legislator and the courts have given effect to international law on the domestic level.

Chapter 2: The main theories

Davíd T. Björgvinsson

Subjects: law - academic, public international law


The common dichotomy on the relationship between international law and domestic law, according to Arthur Nussbaum, began to emerge at the end of the Middle Ages. He argues that the Dark Ages, following the fall of the Roman Empire, saw the rise of what has been termed as medieval universalism, which conceived humanity as united in a holy and universal empire under the guidance of a spiritual and a temporal ruler: the pope and the emperor. They were considered as the ultimate sources of universal law. Within the framework of medieval universalism there was little room left for the division of law into international law and municipal law. However, later on, Nussbaum states that the late Medieval Ages saw in the twelfth and thirteenth centuries, in the works of the Italian glossators, and even more so in the fourteenth century in the works of the post-glossators, the emergence of legal doctrines bearing the seed of the distinction between international law and domestic law. This, he argues, can be seen, among others, in the works of Bartolous (1314–57), in which it is apparent that emphasis on universalism in law and political ideology was no longer in line with the disintegration of the empire into de facto free and independent states, followed by the acceptance of the right of each and every ‘king’ to be an ‘emperor’ in his own realm.

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