Law optional 2021 Paper I

Explain different theories on the relationship between International law and Municipal law.

Verified Answer
  1. Core Legal Answer & Context: The relationship between international law and municipal (domestic) law is a fundamental aspect of international legal theory, addressing how these two distinct legal orders interact within a state's legal system. Two primary theoretical approaches, Monism and Dualism, offer contrasting views, while a more pragmatic approach often blends elements of both.

a) Monism: Monist theories posit that international law and municipal law constitute a single, unified legal system. In this view, international law is supreme and automatically incorporated into the domestic legal order without any specific act of transformation. If a conflict arises, international law is generally considered to prevail over municipal law. Proponents like Hans Kelsen and Hersch Lauterpacht argued for the inherent superiority of international law, viewing national legal systems as subordinate parts of a larger global legal order. Monism emphasizes the direct applicability of international norms within national courts and administrations.

b) Dualism: Dualist theories, championed by scholars like Heinrich Triepel and Dionisio Anzilotti, maintain that international law and municipal law are two entirely separate and distinct legal systems. They operate in different spheres, regulate different subjects (states vs. individuals), and derive their authority from different sources. For international law to have effect within a domestic legal system, it requires a specific act of 'transformation' or 'incorporation' by the state's legislature (e.g., passing a statute to implement a treaty). Without such an act, international law has no direct domestic legal force. In case of conflict, a domestic court would apply domestic law, even if it violates international obligations, though the state would still be responsible internationally.

c) Harmonization/Coordination: Many contemporary scholars and state practices adopt a more nuanced approach that acknowledges the distinct nature of the two systems but emphasizes the need for their coordination and harmonization. This perspective recognizes that states often adopt mixed approaches: customary international law might be automatically incorporated (monist tendency), while treaties typically require legislative action (dualist tendency). The Vienna Convention on the Law of Treaties (VCLT) Article 27, which states that a party may not invoke its internal law as justification for its failure to perform a treaty, underscores the international law's expectation of compliance, regardless of domestic legal arrangements.

  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." This article highlights the international law's perspective on the relationship, emphasizing the supremacy of treaty obligations in the international sphere.
  • National Constitutions: Many national constitutions contain provisions addressing the status of international law within their domestic legal systems (e.g., German Basic Law Article 25, US Constitution Article VI Clause 2 - Supremacy Clause, though its interpretation varies).
  1. Important Landmark Cases:
  • Alabama Claims Arbitration (1872): This arbitration established the principle that a state cannot plead its own municipal law as an excuse for non-compliance with its international obligations, reinforcing the international law's perspective on state responsibility.
  • Mortensen v. Peters (1906, Scottish High Court of Justiciary): This case is often cited as an example of a dualist approach, where a domestic court applied a Scottish statute, even though it was found to be in conflict with international fishery regulations, illustrating the supremacy of domestic law within the national legal system in such instances.
  • The Paquete Habana (US Supreme Court, 1900): This case demonstrated a monist tendency in the US legal system regarding customary international law, holding that 'international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.'
  1. Clear Conclusion: While Monism and Dualism provide theoretical frameworks, state practice often reflects a pragmatic blend. Most states acknowledge the distinct nature of international and municipal law but strive to ensure their domestic legal systems are consistent with their international obligations. The VCLT Article 27 underscores that, from an international perspective, a state's domestic legal arrangements cannot excuse its failure to comply with international law.