Public international law Essay Example | Topics and Well Written Essays - 2000 words - 1

Public international law - Essay Example The result is often referred to as crystallization.3 In general, national courts are not expected to apply national legislation in a way that is inconsistent with international treaties, but there is no expectation that the inconsistent legislation is deemed null and void.4 This may sound simple enough. However, since law is not a science, national courts are not always consistent in their respective approaches to customary international law.5 Essentially, the problem begins with national constitutions. National courts must first begin by reference to their own constitutions.6 National constitutions determine the status of international law within the national legal order.7 In this paper, the difficulties implicit in national constitutions in shaping and defining the relationship between national law and international law are examined in the context of the UK’s constitution. The extent to which the reciprocal application of international and national laws by national courts an d international tribunals function effectively, is compromised by the interpretation of and application of international treaties at the domestic level. ... Complicating matters, some constitutions may even fail to incorporate international treaties.8 The UK provides an even more interesting enigma in that it does not have a written constitution. The UK’s constitution is comprised of a convention, common law and various statutory instruments.9 The difficulty for the UK, is manifested by the fact that state constitutions will generally direct how and where an international treaty stands in relation to national statutes. For instance, if the treaty is to prevail over national statutes where there is a conflict between the two, the Constitution will make this declaration. The UK’s constitutional conventions however, do not make any such declaration but merely establishes that Parliament remains supreme and has the ability to make and repeal any law.10 The UK’s unwritten constitution is usually characterized as dualist in nature, although there is evidence that the UK’s constitution is also monist in nature.11 By way of background, the relationship between international law and national law is fraught by two primary concerns. The first is theoretical in nature and commands attention to whether or not pursuant to the monist doctrine, both legal regimes form part of the international legal regime, or whether they are two different legal regimes according to the dualist doctrine. The second concern is practical in nature and involves ascertaining the approach for resolving conflicts in international and national law.12 The theoretical and practical implications for the relationship between national and international law from the perspective of the UK’s constitution are compromised in that the UK’s national courts do not have a constitutional document by which to determine the