hand, there is national law, which addresses the inhabitants and nationals of a
particular country. Because internal sovereignty means that the state is the single
highest authority in a particular territory, it is up to the state to determine the
contents of this law, either by making it in the form of legislation or case law or by
not abolishing it by means of legislation. On the other hand, there is international
public law, which addresses states and regulates the relations between them (see
Fig.1.2).
In this picture of two kinds of law, international law cannot have an institution
that takes the role of the state in national law because states are externally
sovereign. So it is not merely a matter of fact that there is no international legislator
or an international judiciary. According to this Westphalian picture, it is impossible
to be otherwise. An international counterpart of the legislature and the judiciary of
national states would only be possible if states would give up their external
sovereignty and thereby overthrow the Westphalian constitutional model, which
took centuries to develop and which has lasted for centuries. And yet, this issue is
presently at stake.
10.6.3.2 Law from International or EU Origin
If there are two kinds of law—international public law, which addresses states, and
national law, which addresses citizens (and organizations)—the question arises as
to how the two relate to each other. In theory, the answer to this question should be
easy. Since public international law addresses only states while national law only
addresses nationals, both kinds of laws would have their own addressees and
interference or conflicts would not be possible. In practice, it is not that simple.
There are forms of international law that indirectly affect nationals, such as human
rights law and EU directives. If a state undertakes an obligation towards other states
to protect human rights, is it then possible for citizens of that state to invoke these
human rights for national courts? If an EU Member State has not yet implemented a
directive, is it then possible to invoke this directive before a national court as if it
were implemented?
Direct Effect These questions are traditionally labeled as dealing with the “direct
effect” of international or—for that matter—EU law. The usual answer to them is
that under certain circumstances, international regulations can be invoked by
citizens for national courts. There is less agreement about the reason why this is
possible.
From one perspective, the distinction between international law and national law
is strict. Citizens of a country can only invoke national laws, and the judiciary of a
country only has to apply national law. However, law that was originally of an
international nature can become part of the national law, and then citizens can
invoke it and courts will have to apply it.
Transformation If this approach to international law is adopted, a new question
arises: how can law with an international origin become national law? Several
answers are possible, and we will only mention the “extremes.” In the UK, law with
230 J. Hage