U2-S2.Relación entre Derecho Internacional y Derecho Interno
Understanding the Relationship Between International Law and Domestic Law
Introduction to International and Domestic Law
- The discussion begins with an overview of the increasing role of international law in regulating various aspects of international society.
- Key questions are posed regarding the binding nature of international law on judges and legislative bodies, its regulation of internal matters, and the implications for the relationship between international and domestic law.
Theoretical Frameworks: Dualism, Monism, and Pluralism
- Heinrich Strupp's 1899 work introduces three theories regarding the relationship between international law and domestic law: dualist, monist, and pluralist perspectives.
Dualist Theory
- Represented by jurists like Dionís Jones and Loty, this theory posits that international law and domestic law are entirely separate legal systems.
- According to dualists:
- International law applies only to states based on agreements they enter into.
- Domestic law governs individuals within a state.
- The sources of these laws differ; dualists argue that international law arises from state consent while domestic law stems from sovereign will.
- Treaties require corresponding domestic legislation for enforcement; if a treaty conflicts with a constitution, the latter prevails.
Monist Theory
- Hans Kelsen represents this perspective which asserts that both forms of law are compatible parts of a single legal order.
- Within monism:
- There are variations where either international or domestic law may hold supremacy or where natural law is prioritized.
Variants of Monism
- Nationalistic Monism:
- Asserts that domestic law has greater authority than international norms (e.g., Mexico’s constitution).
- Internationalistic Monism:
- Claims that international laws take precedence over national laws; supported by jurisprudence from courts like the Permanent Court of International Justice.
- Natural Law Emphasis:
- This variant suggests natural rights may supersede both forms.
Jurisprudential Insights
- Historical rulings illustrate how states must adapt their internal laws to comply with treaties they ratify (e.g., cases from 1925 & 1926).
- Article 27 of the Vienna Convention emphasizes that states cannot use internal laws as excuses for failing to uphold treaty obligations.
Case Study: Barrios Altos Case
Legal Implications of Amnesty Laws in Peru
The State's Position on Accountability
- The Peruvian state indicated its inability to sanction alleged perpetrators due to the approval of an amnesty law that exempts them from prosecution.
Inter-American Court's Response
- The Inter-American Court highlighted the incompatibility between self-amnesty laws and the American Commission on Human Rights, stating that such laws lack legal effect.
Hierarchy of International Treaties
- The court emphasized that Peru must comply with its international obligations, as it has ratified the American Convention on Human Rights, which holds greater authority than domestic law.
Monist Theory in International Law