In the history of International Law the accords of Westphalia in 1648 set a pattern, establishing the guiding principle, followed since then by the international community, that states are sovereign and within their territories wield supreme power .
While this is fine and the national laws of states enshrine this principle, they are not isolated from observing certain mandatory principles that are dictated by extra-national legal order, i.. law.
To explain the scope and content of the relationship between national law and international law several theories have been established in different gradations (the monistic, dualistic, radical monistic, moderate), which means that for some domestic law and international law up are integrated into a single legal order being two branches of the same legal system, while for others international law and domestic law are two separate systems with different territorial areas of application.
Whichever position is adopted, the primacy of International Law is not affected by the type of constitutional system established by the State, both with regard to the application of the rules of international law within the State, and in terms of resolving conflicts between domestic law and international law, since such primacy arises from the fact that the State is bound by International Law.
A conflict arises between norms of International Law and domestic law, aired before the jurisdiction of an international tribunal, shall be resolved on the basis of the supremacy of International Law. Now, when a conflict arises between laws under domestic law it is not settled in the same way as if there is a violation of international law, bringing the State’s responsibility and the same consequences as any other illegal act. So in both cases the primacy of international law is affirmed.
October 22 2012