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INTERNATIONAL LAW'S INFLUENCE ON THE NATIONAL LEGAL SYSTEM
Kenjaboyeva Mavluda Ikrom kizi
Toshkent state university of law
Faculty of criminal justice
“The strength of international law lies in its
incorporation into national laws.”
– Rosalyn Higgins (former judge of the International Court of Justice)
Annotation:
This scientific paper thoroughly explores the impact of international legal norms on
the national legal system. It provides a theoretical analysis of the concept of international law, its
fundamental principles, its interrelation with national law, as well as mechanisms such as
implementation and transformation. The study also examines the application of international
legal norms within Uzbekistan’s legislation, supported by examples from judicial practice.
Special attention is given to the harmonization of international treaties with national laws, the
influence of decisions made by international organizations on domestic court rulings, and the
mechanisms by which the Republic of Uzbekistan fulfills its international obligations. The paper
presents conclusions and recommendations based on both theoretical approaches and practical
solutions that reinforce the relationship between international and national law. This research
contributes to a deeper understanding of the integration process of international legal norms into
domestic law.
Research objects
The object of this scientific research is the role and impact of international legal norms within the
national legal system, as well as the processes of implementation and transformation of
international legal norms into the national legislation of the Republic of Uzbekistan. Special
attention is given to international treaties, decisions of international organizations, the principles
of international law, and their harmonization with the Constitution and laws of the Republic of
Uzbekistan.
Research Objectives:
1.
To analyze the influence of international legal norms on the national legal system from
both theoretical and practical perspectives.
2.
To study the processes of implementation and transformation of international treaties and
norms within the legislation of the Republic of Uzbekistan.
3.
To conduct an analysis based on real cases involving the application of international legal
norms in judicial practice.
4.
To develop recommendations and proposals aimed at ensuring the harmonization
between international and national law.
Introduction
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Before discussing the impact of international legal norms on the national legal system, it is
important to first analyze the key concepts: international law, national legal system,
implementation, and transformation.
The Concept of International Law
International law refers to public international law, which legally regulates the relationships
between states (subjects) as participants in international relations. Public international law is
generally divided into two main branches:
Public international law
Private international law
Public international law is a div of legal norms that governs relations between states. It is
oriented toward protecting public and state interests on a global scale, similar to constitutional,
criminal, and administrative law. Such relations are sometimes referred to as relations of
authority, due to their nature
Private international law, on the other hand, is a set of norms that regulates civil-legal
relationships complicated by a foreign element. It aims to protect the needs and interests of
individuals and legal entities. Examples include civil, family, and labor law. The status of private
international law is somewhat debatable: some scholars consider it part of national law, while
others view it as a branch of international law.
The Legal System
A legal system is the dynamic structure of existing legal norms in society, acting as a unified
whole. It includes legal norms and branches of law arranged in a specific order and
interconnected.
The internal legal system of the Republic of Uzbekistan is divided into two major branches:
Substantive law branches
Procedural law branches
Substantive law includes constitutional, administrative, family, land, agrarian, financial, civil,
criminal, labor, water, and environmental law.
Procedural law includes civil procedural, criminal procedural, economic procedural, and
administrative procedural law.
In addition, legal institutions play an important role in the national legal system. A legal
institution is a group of interrelated legal norms that regulate a specific type of social relation.
For example:
In constitutional law – the institution of the presidency, the institution of citizens' rights
and freedoms;
In criminal law – the institution of liability;
In family law – the institution of marriage, and so on.
Implementation
The term implementation (derived from English, meaning “to carry out” or “to put into practice”)
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refers to the process of directly incorporating international legal norms into domestic law in their
original form and ensuring their application within the national legal system
.
Transformation
Transformation refers to the adaptation of a state’s international obligations—especially those
concerning the legal status and regime of individuals—to the domestic legal framework. Since
these obligations arise from inter-state relations, they must be reflected proportionately within
national legal rules to ensure that individuals within the state’s territory possess the
corresponding
rights
and
duties
In short, transformation is the set of measures taken by a state to align its national legal order
with its necessary international obligations.
Theoretical and Scientific Section
Although both international and national law share the primary goal of regulating relationships,
there are key differences between them. The most significant distinction lies in the object of
regulation:
International law governs relations between states,
National law regulates relations within the borders of a specific state.
A unique feature of these two systems is their constant interaction, wherein the norms of one
may influence or change the norms of the other.
Common features of international and national law include:
1.
Both represent a set of legal principles and norms that are binding and enforceable.
2.
Both legal systems have structured frameworks:
o
Each contains fundamental principles;
o
Each is divided into branches and institutions;
o
In both systems, the norm (legal rule) is the basic unit or building block.
The Relationship Between International and National Law: Doctrinal Perspectives
Despite the various similarities and differences between international and national law, the two
systems constantly influence one another. This issue has firm theoretical foundations in
international legal doctrine.
Dualist Theory
Represented by scholars such as Tripel, Anzilotti, and Kamarovsky, the dualist theory emerged
in the late 19th century. According to this theory, international and national legal systems are
distinct and independent from each other in several key aspects:
Their objects of regulation,
The subjects of legal relations,
The sources of legal norms.
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Xalqaro ommaviy huquq: Oliy o’quv yurtlari uchun darslik/ Odilqoriyev X.T., Ochilov B.E.; O’zbekiston Respublikasi
Adliya vazirligi, Toshkent davlat yuridik institute. – Toshkent: Adolat, 2007. – 141 b
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Dualists argue that these systems do not conflict, as they operate in different spheres and regulate
different kinds of relationships
Over time, however, a revised understanding emerged, recognizing that neither system can fully
function without interaction with the other. This evolved view is referred to as “dialectical
dualism”, which acknowledges:
The interdependence between international and national law,
The primacy of international law in regulating inter-state relations,
The need for national law to reflect international obligations.
Monist Theory
The monist theory, advanced by Lasson, Kaufmann, Kelsen, Russo, and others, supports the
unity of international and national legal systems, though it allows for the primacy of one over the
other.
There are two main strands within monism:
1.
National Law Primacy: One approach views international law as an extension of national
legal systems—having legal force only when incorporated into domestic law.
2.
International Law Primacy: The other approach regards international law as a superior
normative system, one that defines not only the scope of national law but also its core content
and validity.
From a Chronological Perspective: The Primary Influence of National Law on International Law
From a chronological point of view, it can be concluded that national law had a primary
influence on the development of international law. This is explained by the fact that many legal
norms now part of international law were initially formed as rules within domestic legal systems.
For instance, the regulation of human rights and freedoms serves as a clear example. This area
was long established in the national legislation of various countries before becoming universally
recognized under international law.
The Influence of International Law on the National Legal System
International law impacts the national legal system through several key mechanisms:
1. International Treaties
When a state becomes a party to an international treaty, it assumes international obligations,
which
must
then
be
integrated
into
its
national
legal
system.
This integration often requires:
Amending existing laws,
Adopting new legislation,
Or repealing contradictory legal acts.
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A clear example is the influence of international conventions on human rights. These instruments
often directly affect national legislation
.
In cases where conflict arises between an international treaty and domestic law, the treaty
prevails.
This principle is enshrined in the Vienna Convention on the Law of Treaties, which states that a
state cannot invoke its internal law as justification for failing to perform a treaty (Article 27).
Furthermore, this principle is reinforced in Article 15 of the Constitution of the Republic of
Uzbekistan, which states:
"International treaties of the Republic of Uzbekistan, along with universally recognized
principles and norms of international law, are an integral part of the legal system of the Republic
of
Uzbekistan."
"If an international treaty of the Republic of Uzbekistan establishes rules other than those
provided by the national legislation, the rules of the international treaty shall apply."
2. Implementation and Transformation Models
Implementation: Direct incorporation of international legal norms into the national legal
order in their original form, making them immediately applicable.
Transformation: A process in which the state undertakes specific legal and institutional
measures to adjust its national legal system to fulfill its international obligations.
These mechanisms ensure that international legal norms are not only acknowledged but also
effectively applied within the domestic legal framework.
3. Human Rights
International law—especially in the field of human rights—has a significant influence on
national legal systems. States undertake obligations to incorporate international human rights
standards into their domestic legislation.
Prominent international legal instruments that affect national systems in this area include:
The Universal Declaration of Human Rights,
The International Covenant on Civil and Political Rights,
The Convention on the Rights of the Child.
These documents require states to adapt their national laws to protect and promote individual
rights and freedoms.
4. Judicial Practice
International law may also be directly recognized and applied by national courts, particularly
where international norms do not contradict domestic law.
In some countries, courts apply international law directly, strengthening its role in domestic legal
reasoning.
5. The Supremacy of International Law
Some constitutions clearly recognize the supremacy of international law over national legislation.
In others, domestic law may take precedence, but international obligations must still be reflected
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in national laws.
This principle is reaffirmed in:
Article 27 of the Vienna Convention on the Law of Treaties, which states that a party
may not invoke provisions of its internal law as justification for failure to perform a treaty.
Article 15 of the Constitution of Uzbekistan, which establishes that in case of a conflict
between domestic law and an international treaty of Uzbekistan, the provisions of the
international treaty shall prevail.
Case Study: Ferrini v. Germany – Italy’s Judicial Practice
This case exemplifies the conflict between international obligations and national legal systems.
Case Background
Luigi Ferrini, an Italian citizen, was taken prisoner by Germany during World War II and
forced into labor.
He brought a claim in Italian courts, arguing that this act violated his human rights.
Italian courts rejected his claim, citing the principle of state immunity, which prevents
national courts from hearing cases against foreign sovereign states.
European Court of Human Rights (ECHR)
Ferrini brought the case to the European Court of Human Rights (ECHR), which ruled in his
favor, recognizing the violation of his rights.
However, the ECHR decision contradicted the Italian courts’ earlier rulings.
Legal Conflict and Analysis
This situation highlights a conflict between international and national law:
Italy’s courts refused to comply with the ECHR ruling due to state immunity.
However, in 2014, the Italian Constitutional Court re-examined the principle of state
immunity, acknowledging that exceptions must exist where human rights violations are at stake.
The Court found that its previous decision contradicted Articles 2, 3, and 6 of the
European Convention on Human Rights, and thus recognized Ferrini’s right to sue Germany.
The Vienna Convention (Article 27), which contains the principle of the primacy of international
law in cases of legal conflict, played a key role in this reconsideration.
This principle is grounded in the doctrine of “pacta sunt servanda”—“agreements must be
honored
”.
Conclusion
In 2014, the Italian Constitutional Court revised its stance on the principle of state immunity.
It recognized that exceptions exist in cases involving human rights protection, and ultimately
acknowledged Ferrini’s right to bring a claim against Germany.
This case illustrates the growing influence of international law on national legal systems,
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particularly in upholding human rights, even in the face of traditional principles like state
immunity.
The Alabama Case
Background of the Dispute
On May 13, 1861, the British government officially declared its neutrality in the American Civil
War between the Union (North) and the Confederacy (South). It called on its citizens to respect
the Foreign Enlistment Act, which prohibited unauthorized individuals from engaging in military
operations against any country at peace with Britain.
Article 7 of this Act specifically forbade equipping or arming ships within British territory for
the purpose of assisting any belligerent party.
Despite this, the Alabama, a warship, was built by the Birkenhead company in Britain and later
equipped with military supplies at the Port of Liverpool.
The U.S. government informed Britain that the ship, referred to as "Number 290", was likely to
be armed and used for hostile actions against the Union. The U.S. provided substantial evidence
to support this claim.
Britain acknowledged that if the allegations were true, the ship’s arming would violate the
Foreign Enlistment Act, and promised to take preventive action—but insisted on the need for
conclusive proof. The U.S. submitted such evidence multiple times.
Ultimately, the dispute over damages caused by the Alabama's military actions led to diplomatic
tensions between the United States and Britain.
Both parties agreed to submit the case to arbitration under the Treaty of Washington.
Court Decision
Article VI (parts 1 and 3) of the Washington Convention introduced the principle of "due
diligence
and
shared
responsibility":
If a neutral state fails to fulfill its obligations, and this failure leads to harm during wartime, the
state may be held responsible.
The arbitral tribunal found that:
Britain had a legal duty, from the moment Queen Victoria declared neutrality in 1861, to
take all necessary actions to prevent breaches of neutrality.
Britain neglected this responsibility, particularly by delaying its response to clear
warnings from U.S. diplomats about the Alabama’s construction and arming.
Even though an order was eventually issued to seize the Alabama, it came too late—the
ship had already left port.
The measures taken by the British authorities were insufficient, and therefore, Britain's
argument of having fulfilled its duty of due diligence was rejected.
The tribunal concluded that Britain failed to meet its obligations under Article VI of the Treaty
of Washington, and was responsible for the resulting damage
Conclusion
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The court ordered Britain to pay the United States $15,500,000 in damages as compensation for
the losses caused by the Alabama.
Final Reflection
Based on the arguments and theories discussed above, we can conclude that the influence
between international law and national legal systems is mutual and fundamental. In fact, many
norms currently found in international law initially emerged within national legal systems, and
over time, these norms were refined and evolved into international legal standards.
Furthermore, we outlined several key ways in which international law influences national legal
systems. These include:
International treaties,
The models of implementation and transformation,
Human rights,
Judicial practice, and
The supremacy of international law.
Among these, international treaties hold the most significant role. In cases where a conflict arises
between the provisions of an international treaty and a country’s national legislation, the
provisions of the international treaty take precedence.
This principle is enshrined not only in international conventions, but also in the national
legislation of certain countries—for example, Article 15 of the Constitution of the Republic of
Uzbekistan.
While it is true that some provisions of international treaties may affect state sovereignty,
countries voluntarily agree to these obligations when they ratify or accede to international
agreements. Therefore, such cases do not constitute a violation of sovereignty, but rather a
demonstration of voluntary compliance with international obligations.
References
1.
Vienna Convention on the Law of Treaties (pertaining to international law).
2.
Constitution of the Republic of Uzbekistan.
3.
International Public Law: Textbook / A.Kh. Saidov and others. – Tashkent: Tashkent
State University of Law Publishing House, 2023. – p. 35.
4.
Odilqoriyev X.T., Ochilov B.E. International Public Law: Textbook for Higher Education
Institutions / Odilqoriyev X.T., Ochilov B.E.; Ministry of Justice of the Republic of Uzbekistan,
Tashkent State Institute of Law. – Tashkent: Adolat, 2007. – p. 15.
5.
G. Yuldasheva and author team. International Law. Textbook. – Tashkent: Tashkent State
University of Law, 2018.
6.
Casebook on International Law, 2024.
