The Theories
• Dualism
Dualism
• Exist separately and cannot
purport to have an effect on, or
overrule, the other
• Consent of states
• Triepel and Strupp
– supremacy of the State
Dualism
• International law employed
between states
Monoism
• Unitary perception of the law and
understands both laws as forming part of
one and the same legal order
• Two categories :
– those who uphold a strong ethical position for human rights exp. Lauterpacht
Monoism
• Kelsen :
– international law was supreme over municipal law
– municipal law inconsistent with int’l law was automatically null and void and international law rules were directly applicable in the domestic sphere of states
Differentiation of Municipal and
International law from dualism
perspectives :
Municipal law
customary and
written law
individuals within a
country
binding
International law
Customary and
consent of states
states as int’l
Monoism v. Dualism
• Fitzmaurice :
The Role of Municipal Law in
International Law - I
• National law has no effect on the duties or
obligations of states in int’l level
• A state cannot stand and justify itself by,
when it breaches international obligation,
referring to its domestic legal situation
• Article 27 of Vienna Convention on the
Law of Treaties, 1969
to perform in
Article 27 of the 1969 Vienna
Convention on the Law of Treaties :
A party may not invoke the provisions of its
internal law as justifications for its failure
The Role of Municipal Law in
International Law - II
• Alabama case 1872
US v. Britain
• Supremacy of international law
• Municipal law is vital to the workings of
international law
The Role of Municipal Law in
International Law - III
• Municipal law can be utilized as evidence
of compliance or non compliance with
international obligations
The Role of Municipal Law in
International Law - IV
• Custom and general rules
– The recognition is laid down in advance in the constitution or is gradually formulated by the national courts
• Treaties
The attitude of International law to
municipal law I
• Municipal law as evidence of international
custom or of general principles of law
• Int’l law leaves certain question to be
decided by municipal law
The attitude of International law to
municipal law II
• Transformation doctrine
int’l law needs
to be transformed into municipal law
before it can have any effect within the
domestic jurisdiction
treaties
• Incorporation doctrine
int’l law is part of
the municipal law automatically without the
necessity of ratification procedure
Triquet v. Bath
(1764) I
• Domestic servant to Bavarian Minister to Great Britain
• Incorporation doctrine was applied before the case
• English law overrule diplomatic immunity which ruled in customary int’l law?
• Thus apply without an Act of Parliament
Triquet v. Bath
(1764) II
• Lord Mansfield :
the privilege of foreign
ministers and their domestic servants
depends upon the law of nations
West Rand Central Gold
Mining Co. V. R (1905) I
• South African Republic took over the property of a British company in a way contrary to the law of the Republic
• In 1900, British Government annexed the Republic during the Boer War (1899 – 1902)
• The company claimed the compensation of its loss before the court
West Rand Central Gold
Mining Co. V. R (1905) II
• Int’l law imposed no such liability
• The court rejected the argument that the conquering state was liable in int’l law for the financial obligations of its predecessor
• No need to impose such rule as part of English Law
Sei Fuji v. California
(1952) I
• A Japanese bought a property in California
• The conduct itself had been escheated to
the State since aliens had no right to
acquire land.
• No treaties between the two state to
legalize the right to own land
Sei Fuji v. California
(1952) II
• The plaintiff’s argument was that the Alien
Land Law has been superseded by the
UN Charter
human rights issue
discrimination
