ABSTRACT

In an essay originally published in 1960, Hans Kelsen, the brilliant if controversial specialist in international law, held that international law and the laws of any given state cannot both be primary: one must take precedence over the other.3 If, Kelsen argued, one posited the primacy of international law, then there can be no room for state sovereignty as such.4 But if, on the other hand, one chooses to affirm the primacy of state sovereignty, then, for Kelsen, one must accept that this entails acceptance of the maxim ‘. . . that the state is not subject to a legal order superior to its own national law’.5