Law optional 2020 Paper I

Q7. (a) (i) Explain the State practices relating to observing International law within the Municipal law.

Verified Answer
  1. Core Legal Answer & Context: States observe international law within their municipal (domestic) legal systems through various practices, primarily guided by two theoretical approaches: monism and dualism. These doctrines describe how international law is incorporated into, or interacts with, national law.

Monism: In a monist system, international law and municipal law are considered part of a single, unified legal order. International law is generally seen as supreme and automatically incorporated into domestic law without the need for specific legislative action. Once a state ratifies a treaty or a rule of customary international law emerges, it immediately becomes part of the national legal system and can be directly applied by domestic courts. Examples include countries like Germany and the Netherlands, where international human rights treaties can often be directly invoked in national courts.

Dualism: In a dualist system, international law and municipal law are regarded as two separate and distinct legal orders. International law does not automatically become part of domestic law. For an international rule to have effect domestically, it must be 'transformed' or 'incorporated' into municipal law through specific legislative acts (e.g., an Act of Parliament). Until such transformation, international law remains external to the domestic legal system. The United Kingdom and the United States are often cited as dualist states. For instance, a treaty ratified by the UK government does not become part of UK law until Parliament passes legislation to implement it.

State Practices:

  • Treaty Implementation: Most common practice. In dualist states, treaties require legislative enactment (e.g., a statute) to be enforceable domestically. In monist states, treaties may be directly applicable upon ratification, though some may still require implementing legislation for specific provisions.
  • Customary International Law: Many states, regardless of their monist/dualist leaning, recognize customary international law as part of their domestic law, often through judicial pronouncements. For example, the US Supreme Court in Paquete Habana recognized customary international law as part of US law, to be ascertained and administered by the courts.
  • Constitutional Provisions: Some national constitutions explicitly address the relationship, stating that international law is supreme (monist) or that treaties require parliamentary approval (dualist).
  • Judicial Application: Domestic courts play a crucial role in interpreting and applying international law, either directly (monist) or after legislative incorporation (dualist). They may also use international law as an aid to interpret ambiguous domestic statutes.
  • Executive Action: The executive branch is responsible for negotiating and ratifying treaties, and often for ensuring compliance with international obligations through administrative actions.
  1. Relevant Statutes and Sections:
  • Vienna Convention on the Law of Treaties (VCLT), Article 27: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
  • National Constitutions (e.g., Article 25 of the German Basic Law, Article VI of the US Constitution).
  1. Important Landmark Cases:
  • Paquete Habana (US Supreme Court 1900): Held that customary international law is part of US law and must be ascertained and administered by the courts.
  • Mortensen v. Peters (Scottish High Court of Justiciary 1906): Illustrated the dualist approach, where a domestic statute, even if contrary to international law, must be applied by domestic courts until repealed by Parliament.
  1. Clear Conclusion: States adopt diverse practices to observe international law within their municipal systems, primarily influenced by monist or dualist doctrines. While monist states tend to directly incorporate international law, dualist states require legislative transformation. Regardless of the approach, states are bound by international law on the international plane, and their domestic practices aim to ensure compliance and avoid international responsibility.