en_principles

1.

LECTURE · PUBLIC INTERNATIONAL LAW
Principles of IL &
the Relationship between
IL and National Law
UN Charter · Friendly Relations · Monism / Dualism · Comparative
Academic Lecture Series

2.

OUTLINE
Lecture Contents
Four parts
01
03
Fundamental principles
02
Monism vs dualism
UN Charter, Friendly Relations 1970, Helsinki 1975.
Kelsen vs Triepel — two competing theories.
Incorporation & direct effect
Comparative analysis
Adoption, transformation, self-executing.
Principles of IL & IL/National Law
04
Kazakhstan, Russia, UK, USA — practice.
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3.

PART I
Fundamental principles
UN Charter · Friendly Relations 1970 · Helsinki 1975

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CHAPTER 01 · SOURCES
Sources of fundamental principles
Three key instruments — Charter + interpretive declarations
1945
UN Charter
Article 2 lists 7 principles governing conduct of the Organization + its
1970
Friendly Relations Declaration
UNGA Res. 2625 — authoritatively interprets and expands Charter principles.
members.
1975
Helsinki Final Act
CSCE Decalogue — added 3 more principles (borders, territory, human rights).
Principles of IL & IL/National Law
Today
Jus cogens + CIL
Most fundamental principles have crystallized as jus cogens or customary IL.
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5.

CHAPTER 01 · CHARTER
UN Charter · Article 2 · Seven principles
The founding text — governs the UN and its members
2(1)
Sovereign equality of all members.
2(2)
Fulfillment of obligations in good faith.
2(3)
Peaceful settlement of disputes.
2(4)
Prohibition of threat or use of force.
2(5)
Assistance to UN in Charter actions + refrain from assisting targets.
2(6)
UN ensures non-member states act in accordance with principles.
2(7)
Principles of IL & IL/National Law
Non-intervention in matters within domestic jurisdiction.
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6.

CHAPTER 01 · FRD 1970
Friendly Relations Declaration (1970)
UNGA Resolution 2625 (XXV) · authoritative interpretation
ADOPTED 24 OCTOBER 1970
Adopted by consensus on 25th anniversary of the UN. Widely regarded as authoritative statement of CIL on Charter principles. Cited by ICJ
in Nicaragua (1986).
Elaborates 7 principles
«Interconnected principles»
Same as Charter Art. 2 — but with detailed elaboration of content and scope.
Declaration states that the principles are «interrelated and each shall be construed in
the context of the others».
Evidence of opinio juris
Universal acceptance
Nicaragua (1986): resolutions like FRD evidence opinio juris of CIL rules.
Adopted by consensus of all UN members — no formal opposition to any principle.
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7.

CHAPTER 01 · FORCE
Principle 1 · Non-use of force
Article 2(4) — the cornerstone of modern IL
UN CHARTER · ART. 2(4)
«All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the UN».
Jus cogens
Only 2 exceptions
Recognized as peremptory norm — no derogation possible.
UNSC authorization (Chapter VII) + self-defense (Art 51).
Force = armed force
Scope broad
Nicaragua (1986): economic pressure is not «force» under 2(4).
Includes threat of force — not just actual use.
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8.

CHAPTER 01 · PEACEFUL SETTLEMENT
Principle 2 · Peaceful settlement of disputes
Article 2(3) + Article 33 — obligation to seek non-violent solutions
ART. 33 CHARTER
Parties to any dispute likely to endanger international peace and security shall FIRST seek a solution by peaceful means of their own choice.
Negotiation
Enquiry
Mediation
Direct talks between parties.
Fact-finding by impartial body.
Third-party facilitator.
Conciliation
Arbitration
Judicial settlement
Non-binding commission's report.
Binding third-party decision.
ICJ or specialized tribunal.
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9.

CHAPTER 01 · NON-INTERVENTION
Principle 3 · Non-intervention
Article 2(7) + FRD — respect for domestic jurisdiction
FRD 1970
«No state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of
any other state».
Direct armed intervention
Coercive economic pressure
Prohibited under 2(4) — also captured under non-intervention.
Actions «to secure subordination» of another state — prohibited.
Political subversion
Nicaragua (1986)
Financing, arming, training subversive/terrorist activities in another state.
ICJ: non-intervention is CIL; US aid to Contras violated it.
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10.

CHAPTER 01 · COOPERATION
Principle 4 · Duty to cooperate
Positive obligation — beyond mere abstention
FRD 1970 · POSITIVE OBLIGATION
States have a duty to cooperate with one another in accordance with the Charter — regardless of differences in political, economic, and
social systems.
Peace and security
Human rights
Cooperation for maintenance of international peace and security.
Cooperation to promote respect for human rights and fundamental freedoms.
Economic and social
Environment
Cooperation in economic, social, cultural, technical, commercial fields.
Emerging duty — climate, biodiversity, transboundary pollution.
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11.

CHAPTER 01 · SELF-DETERMINATION
Principle 5 · Equal rights + self-determination
Right of peoples to choose their political status
FRD 1970 · ICCPR + ICESCR ART. 1
«All peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and
cultural development».
External
Internal
Right to independence — decolonization, formation of new state.
Right to participate in political process — democratic governance.
Peoples, not states
Territorial integrity limit
Right of «peoples» — but no agreed definition of who counts as «people».
External s-d limited by uti possidetis + territorial integrity of states.
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12.

CHAPTER 01 · SOVEREIGNTY
Principle 6 · Sovereign equality
Article 2(1) — «All Members shall be equal»
FRD 1970 · ELABORATION
All states enjoy sovereign equality — same rights and duties, equal members of international community, notwithstanding differences of
size, wealth or power.
Legal equality
Territorial integrity
Equal in law — one state, one vote in most IOs.
Right to inviolability of territory + political independence.
Free choice of system
Immunity from other jurisdictions
Right to freely choose political, social, economic, cultural system.
State immunity — parity in judum non habet.
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13.

CHAPTER 01 · GOOD FAITH
Principle 7 · Good faith fulfillment of obligations
Pacta sunt servanda — Article 2(2) + VCLT 26
VCLT ART. 26
«Every treaty in force is binding upon the parties to it and must be performed by them in good faith». — the cornerstone principle
of treaty law and IL as a whole.
Charter obligations
Under GA principles
Members must fulfill in good faith obligations assumed under UN Charter.
Obligations arising from generally recognized principles of IL.
Under treaties
No conflicting rules
Treaty obligations — pacta sunt servanda — VCLT 26, Art. 27.
Cannot invoke domestic law to justify non-performance — VCLT 27.
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14.

CHAPTER 01 · HELSINKI
Helsinki Final Act (1975) · Decalogue
CSCE · three additional principles for European security
1 AUGUST 1975 · 35 STATES
Signed by US, USSR, and all European states. Combined 7 UN principles with 3 new ones — «10 principles guiding relations between
states».
Territorial integrity
Inviolability of frontiers
Respect for human rights
States regard borders of all states in Europe as
Recognition of post-WWII European borders —
Respect for human rights and fundamental
inviolable — no forcible acquisition of territory.
cornerstone of continental stability.
freedoms — including thought, conscience,
religion, or belief.
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15.

PART II
Monism vs Dualism
Two competing theories · Kelsen vs Triepel

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CHAPTER 02 · OVERVIEW
The classical debate · monism vs dualism
Two rival theories of the relationship between IL and national law
THE CENTRAL QUESTION
Are IL and national law parts of a single legal system, or are they two separate systems that occasionally interact?
Monism
Dualism
One legal system
Two legal systems
IL and national law belong to a single unified legal order — Kelsen, Verdross.
IL and national law are separate systems with distinct subjects and sources —
Triepel, Anzilotti.
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CHAPTER 02 · MONISM
Monism · Kelsen and the pure theory of law
One legal order — IL and national law integrated
HANS KELSEN · 1881–1973
IL and national law form a single legal order. National law derives validity from IL (Kelsen) — or vice versa (some versions). No formal
barrier between the two.
Single Grundnorm
Automatic incorporation
One basic norm at the top — from which all law derives validity.
IL norms automatically part of national law — no separate implementation needed.
IL primacy (Kelsen)
Direct effect
IL prevails over national law in case of conflict — «monism with IL primacy».
Individuals can directly invoke IL norms before national courts.
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CHAPTER 02 · DUALISM
Dualism · Triepel and Anzilotti
Two separate legal systems — sovereign parallel orders
HEINRICH TRIEPEL (1899) + DIONISIO ANZILOTTI (1902)
IL and national law are two entirely separate legal systems with different subjects, sources, and objects. They can conflict but never truly
clash — they operate in different spheres.
Different subjects
Different sources
IL governs relations between states; national law governs individuals within a state.
IL from treaties + custom; national law from Parliament + courts.
Transformation required
Domestic supremacy
IL norm becomes national law only when specifically incorporated (statute, decree).
In case of conflict, national court applies national law — even if IL is breached.
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CHAPTER 02 · MODERN
Reconciliation and modern practice
Neither pure monism nor pure dualism — mixed reality
PRACTICAL RECONCILIATION
In reality, most states adopt a mixed approach — parts of IL directly applicable, others requiring transformation. Constitutional provisions
differ.
VCLT Art. 27
Different treatment for CIL vs treaties
«A party may not invoke provisions of its internal law as justification for failure to
Many states apply CIL automatically but require ratification for treaties.
perform a treaty».
Constitutional supremacy
Human rights
Even monist states subordinate IL to their Constitution (not to ordinary laws).
HR treaties increasingly directly effective — global convergence trend.
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20.

PART III
Incorporation & direct effect
Mechanisms · Adoption · Transformation · Self-executing

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CHAPTER 03 · MECHANISMS
Mechanisms of incorporation
How IL becomes part of the domestic legal order
Adoption / automatic
Transformation
Monist
Dualist
IL norm becomes part of domestic law automatically — no legislative act needed.
IL norm must be «transformed» into domestic law by legislative or executive act.
Reference
Constitutional entrenchment
Middle path
Constitutional
Domestic legislation refers to IL rule and thereby incorporates it — technique used in
IL norms given constitutional rank — highest legal force domestically (e.g., HR
trade.
treaties).
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22.

CHAPTER 03 · ADOPTION
Automatic incorporation
The «adoption» doctrine — CIL as part of the law of the land
TWO PATTERNS
In most states — CIL is automatically part of domestic law. Treaties often require ratification / publication to become effective domestically.
USA · Paquete Habana (1900)
Germany · Art. 25 GG
«International law is part of our law» — CIL applied by federal courts without
«The general rules of international law are an integral part of federal law» — direct
transformation.
effect.
Russia · Art. 15(4) Constitution
Netherlands · Art. 93 Constitution
«Generally recognized principles and norms of IL» are part of Russian legal system.
Treaty provisions with generally binding force can override national law after
publication.
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CHAPTER 03 · TRANSFORMATION
Transformation
IL requires a domestic act to become internally binding
DUALIST APPROACH
IL rule (treaty or CIL) must be «transformed» into national law by legislative act. Without transformation — courts cannot apply it directly.
Legislative Act
Publication decree
Full text of treaty enacted as domestic statute (e.g., UK Human Rights Act 1998).
Executive act publishing the ratified treaty in the official gazette.
Reference clause
Judicial recognition
Domestic law contains clause «X shall be governed by [name of treaty]».
Courts may treat treaty as part of law when it has been ratified — a soft form.
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CHAPTER 03 · DIRECT EFFECT
Direct effect
Can individuals invoke IL norms directly in national courts?
CONCEPT · DEVELOPED IN EU LAW
An IL norm has «direct effect» when it can be invoked by individuals before national courts without further legislative implementation.
Clear and precise
Unconditional
Norm must be sufficiently clear to be applied — no vague language.
Not subject to further legislative or executive action to take effect.
Creates individual rights
Van Gend en Loos (1963)
Rule must confer rights on individuals — not merely inter-state obligations.
CJEU landmark — EU treaty provisions can have direct effect for individuals.
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25.

CHAPTER 03 · SELF-EXECUTING
Self-executing vs non-self-executing treaties
US doctrine · applied in various forms in other states
SELF-EXECUTING
NON-SELF-EXECUTING
Directly applicable
Needs legislation
Foster v. Neilson (1829)
Medellín v. Texas (2008)
US: treaty applied automatically as law of the land upon ratification. Requires:
Treaty binds state internationally but requires implementing legislation for
clarity, intent of parties to be self-executing, subject matter suitable.
domestic effect. Individual cannot invoke it in court until implemented.
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26.

PART IV
Comparative analysis
Russia · UK · USA

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CHAPTER 04 · RUSSIA
Russian Federation · Constitutional monism with limits
Constitution 1993 — Article 15(4) + 2020 amendment
CONSTITUTION ART. 15(4)
«Generally recognized principles and norms of international law and international treaties of the RF shall be a constituent part of its legal
system» — with priority over inconsistent laws.
CIL + treaties
Treaty priority
Both generally recognized principles + ratified treaties are part of the legal system.
Ratified treaty prevails over inconsistent national law but not over Constitution.
2020 amendment
ECHR withdrawal (2022)
Art. 79 amended — decisions of int'l bodies cannot be enforced if contrary to
Russia expelled from Council of Europe; ECtHR jurisdiction terminated.
Constitution.
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CHAPTER 04 · UK
United Kingdom · classical dualist approach
Parliamentary sovereignty — treaties need implementation
DUALIST TRADITION
«Treaty-making is executive prerogative, but a treaty cannot alter domestic law without an Act of Parliament» — J. H. Rayner v.
Department of Trade (1990).
Treaties — dualist
CIL — monist
Treaty requires Act of Parliament to be part of domestic law — e.g., Human Rights
CIL applied by common law courts «as part of the law of the land» — Trendtex
Act 1998.
Trading (1977).
Parliamentary supremacy
Brexit + EU law
Parliament can legislate contrary to IL — but presumption of consistency.
European Communities Act 1972 (which gave EU law direct effect) repealed postBrexit.
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CHAPTER 04 · USA
United States · Mixed constitutional approach
Article VI Supremacy Clause — self-executing doctrine
CONSTITUTION ART. VI(2)
«All Treaties made... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby». Combined with CIL as
part of federal common law (Paquete Habana).
Self-executing treaties
Non-self-executing treaties
Directly binding without implementing legislation — courts apply automatically.
Require implementing legislation — Medellín v. Texas (2008) restricted category.
Later-in-time rule
CIL
Later statute can override earlier treaty — «last in time» controls (dualist element).
Part of federal common law — but subordinate to statutes and Constitution.
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30.

CHAPTER 04 · COMPARISON
Comparative table · four states
At-a-glance overview of IL–national law relationship
APPROACH
TREATIES
CIL
RANK
Monist (mixed)
Direct (after ratification)
Not explicit
> laws, < Constitution
Russia
Constitutional monism
Direct (after ratification)
«Generally recognized»
> laws, < Constitution
UK
Dualist (CIL: monist)
Transformation required
Common law adoption
< all statutes
USA
Mixed (constitutional)
Self-executing OR not
Federal common law
Last-in-time rule
STATE
Kazakhstan
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31.

KEY TAKEAWAYS
Summary
Fundamental principles — UN Charter Art 2 (7 principles) + Friendly
01
Relations Declaration 1970 + Helsinki 1975 (10 total).
Non-use of force (2(4)) + peaceful settlement (2(3)) + non-intervention +
02
Monism (Kelsen) — one legal order, IL primacy. Dualism (Triepel) —
03
separate systems, requires transformation.
Modern practice — mixed: CIL often automatic; treaties often need
04
Kazakhstan + Russia — monist-leaning; treaty priority over laws but
05
below Constitution.
sovereign equality — cornerstone jus cogens principles.
ratification; direct effect requires clarity + intent.
UK — dualist for treaties, monist for CIL. USA — mixed, self-executing
06
doctrine, last-in-time rule (Medellín 2008).