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 4: Automatic incorporation or transformation

Davíd T. Björgvinsson

Subjects: law - academic, public international law


The effects of international treaties in national law emerge mainly in two different ways: by incorporating them directly into national law and in their application by the national executive or the national courts. There is no general requirement under international law on states to change their internal legislation in order for it to be consistent with international legal obligations. Thus, international law does not contain normative rules as to the status that should be given to international law in the national legal system. It should be reiterated in this context that Article 27 of the Vienna Convention on the Law of Treaties contains a provision pertaining to internal law and observance of treaties. It is stated that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Other than that, neither the Vienna Convention nor any other rule of international law imposes on states any duty as to how observance of international law obligations should be achieved in national law. No such general obligation upon a state can be used to favour any particular theory over another. From the foregoing it is clear that, from a legal point of view, it is impossible to favour one approach rather than the other. From a theoretical or ideological point of view, it is also very difficult to favour one approach rather than the other.

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